This  book  is  DUE  on   the  last  date  stamped  below 
"^    1927. 


m        'y  OF         RHiA 

LIBRARY 

LOS  Afi(fil^l^^>  CALIF- 


A 


M^^-iK 


READINGS  IN 

AMERICAN  GOVERNMENT 

AND  POLITICS 


■>y  ^^"*  o 

THE  MACMILLAN  COMPANY 

NEW  YORK    •    BOSTON    •    CHICAGO 
ATLANTA   •    SAN    FRANCISCO 

MACMILLAN  &  CO.,  Limited 

LONDON  •  BOMBAY  •  CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  Ltd. 

TORONTO 


READINGS  IN 

AMERICAN    GOVERNMENT 

AND  POLITICS 


BY 

CHARLES   A.    BEARD,   Ph.D. 

ADJUNCT   PROFESSOR   OF   POLITICS   IN   COLUMBIA   UNIVERSITY 


Neto  gorfe 

THE   MACMILLAN    COMPANY 

1909 

All  rights  reserved 


Copyright,  1909, 
By  the  macmillan  company. 


Set  up  and  electrotyped.     Published  SeptemT  '  r,  igog. 


J.  8.  Cushins  Co.  —  Berwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


^  5  an. 
PREFACE 

This  collection  of  illustrative  materials  is  designed  to  accom- 
pany my  American  Government  and  Politics,  now  in  preparation, 
and  the  choice  and  arrangement  of  the  selections  have  been 
dominated  by  the  plan  of  that  volume.  However,  I  hope  that 
the  pages  which  follow  may  be  used  with  profit  in  connection 
with  other  manuals,  and  read  with  some  interest  by  the  student 
of  government  who  wishes  to  go  beyond  the  statements  of  text 
writers  for  his  information. 

While  the  materials  come  from  a  large  variety  of  sources, 
I  have  chosen  wherever  possible  from  the  writings  of  men  who 
have  had  a  practical  experience  in  the  conduct  of  government. 
I  have  also  sought  to  illustrate  the  larger  and  more  permanent 
features  of  our  political  system,  rather  than  to  furnish  a  "  handy 
guide  to  the  law  and  practice."  To  facilitate  the  work  of  the 
student  and  teacher,  I  have  endeavored  to  make  each  extract 
clear,  compact,  and  self-explanatory,  and  in  several  instances 
I  have  condensed  considerably  by  omitting  obscure  allusions 
and  passages  not  bearing  directly  on  the  principles  which  I  have 
wished  to  bring  out.  To  avoid  marring  the  pages  with  unsightly 
"  points,"  I  have  merely  placed  an  asterisk  at  the  head  of  each 
selection  which  has  been  subjected  to  this  process  of  condensa- 
tion. The  side  notes  are  intended  primarily  to  help  the  teacher 
in  conducting  class  discussions. 

I  am  indebted  to  the  editors  of  several  magazines  for  the 
privilege  of  making  extracts  from  valuable  articles.  Mr.  Alex- 
ander Holtzoff  has  made  many  long  and  painstaking  searches 
for  me  into  the  fugitive  literature  of  party  politics,  and  I  am 
under   special  obligations  to  him.     Mr.    Frederic  W.  Erb,  of 


4^153 


vi  Preface 

the   Loan   Division  of   the   Columbia   University  Library,   and 

his  assistants  have  lightened  my  labors  by  the  courteous  and 

efficient  manner  in  which  they  have  placed  thousands  of  volumes 

at  my  disposal  during  the  past  twelve  months. 

CHARLES  A.   BEARD. 
Park  Lane, 
New  Milford,  Connecticut^ 
July,  1909. 


CONTENTS    AND    LIST    OF    CITATIONS 

PART  I.     HISTORICAL   FOUNDATIONS 

CHAPTER  I 

Colonial  Origins  of  American  Institutions 

PAGE 

1.  The  royal  province 2 

Bouton,  N.  (editor),  Provincial  Papers  :  New  Hampshire  (1749- 
63),  VI,  908  sqq. 

2.  The  corporate  colony       .........         6 

Poore,  Constitutions  of  the  United  States,  II,  1 59  sqq. 

3.  The  proprietary  colony 9 

Ibid.,  II,  1538. 

4.  A  Boston  town  meeting   .         ,         .         .         .         .         .         .         .II 

Boston  Tozvn  Records,  1758-69,  i-g,  passim. 

5.  Local  government  in  Virginia 13 

Hening,  Statutes  at  Large,  V,  489  sqq.,  and  175. 

6.  Political  theory  before  the  Revolution '4 

Elliot,  A.,  An  Election  Sermon  (1765),  i^-ig, passim. 

CHAPTER   II 
Independence,  Union,  and  Self-government 

7.  The  Boston  committee  of  correspondence 16 

Boston  Town  Records,  1770-77,  92  sq. 

8.  Massachusetts  calls  the  first  Continental  Congress    ....       18 

Force,  American  Archives  (4th  series),  I,  420. 

9.  Appointment  of  the  South  Carolina  delegates I9 

Journals  of  the  Continental  Congress,  1774-89,  I,  23  sq. 

10.  The  Declaration  of  Independence    .......       20 

11.  The  Articles  of  Confederation 25 

12.  Continental  Congress  recommends  the  establishment  of  state  gov- 

ernments ...........       35 

Journals  of  the  Continental  Congress  (1906),  V,  342,  357  sq. 
vii 


viii  Contents  and  List  of  Citations 

PAGE 

13.  The  call  for  the  Maryland  state  convention 36 

Proceedings  of  the    Conventions  in   the  Province   of  Maryland 
(Annapolis,  1774-76),  1845^. 

CHAPTER  III 

The  Establishment  of  the  Federal  Constitution 

14.  Madison's  criticism  of  the  Articles  of  Confederation  ...       38 

Letters  and  Other  Writings  of  James  Madison  (Federal  edition), 
I,  320  sqq. 

15.  The  call  for  the  Constitutional  Convention  of  1787  ....       43 

Elliofs  Debates,  I,  120. 

16.  New^  York  resolves  to  appoint  delegates 44 

Ibid.,  I,  127. 

17.  Difficulties  confronting  the  Convention 44 

The  Federalist,  No.  XXXVI. 

18.  Hamilton's  plea  for  a  strong  and  stable  government         ...       47 

The  Works  of  Alexander  Hamilton  (Federal  edition),  1,401  sqq. 
\,    19.    Philosophy  of  the  American  constitutional  system     ....       49 
The  Federalist,  No.  X. 

20.  Transmission  of  the  Constitution  to  Congress  •         •         •         •         •       53 

Elliot's  Debates,  V,  541. 

21.  Ratification  of  the  new  Constitution 54 

Tiffany,  J., ^  Treatise  on  Gover7iment and  Constitutional Law,'i\. 

CHAPTER   IV 

The  Development  of  the  Federal  Constitution 

22.  The  formal  amending  process 56 

The  federal  Constitution,  Art.  V. 

23.  Initiation  of  an  amendment      . 57 

Bulletin  of  the  Bureau  of  Rolls  and  Library  of  the  Department 
of  State,  No.  7  (1894),  p.  520. 

24.  Ratification  of  an  amendment  by  a  state 5^ 

Ibid.,  522. 

25.  Official  proclamation  of  an  amendment 5^ 

Ibid.,  636  sq. 

26.  Initiation  of  an  amendment  by  a  state 60 

Senate  Document,  60th  Congress,  ist  Sess.,  No.  518,  51  sq. 


Contents  and  List  of  Citations  ix 

PAGE 

27.  Judicial  expansion  of  the  Constitution 62 

McCulloch  V.  Maryland,  4  Wheaton,  316  sqq. 

28.  Congressional  expansion  of  the  Constitution    .         .         ,        .         .66 

Congressional  Record,  XXXV,  Part  7,  6752  sqq. 

29.  The  Constitution  and  executive  practice  ......       69 

Curtis,  The  Republican  Party,  I,  406. 

30.  The  third  term  doctrine 70 

Works  of  Jefferso7t  (1855),  IV,  565  ;    Congressional  Record,  IV, 
Part  I,  228. 

CHAPTER  V 

The  Development  of  State  Constitutions 

31.  Early  state  constitutions 72 

Poore,  Constitutions  of  the  United  States,  I,  ofiZsqq.;  821  sqq. 

32.  American  rotten  boroughs         ........       75 

Niles,  Weekly  Register  (1^21),  VIII  (new  series),  99  sq. 

33.  An  appeal  for  the  right  to  vote         .......       78 

Proceedings   and  Debates  of  the    Virginia   State    Convention   of 
1829-30,  25  sq. 

34.  An  argument  against  popular  suffrage 79 

Ibid.,  369  sqq. 

35.  The  doctrine  of  rotation  in  office      .......       81 

Proceedings    and  Debates   of  the    Convention   of  Pennsylvania 
(1837),  II,  412  sqq. 

36.  Restrictions  on  special  legislation 84 

Debates  of  the  Convention  of  Pennsylvania  (1872),  II,  590  sq. 

37.  Recent  tendencies  in  constitutional  development     ....       87 

The  Constitution  of  Oklahoma,  passim. 

CHAPTER  VI 

The  Evolution  of  Political  Issues  in  the  United  States 

38.  Federalists  and  Jeffersonians 92 

The  Writings  of  Thomas  Jefferson  (1855),  III,  290  sqq. 

39.  The  Whig  Party 94 

Stanwood,  A  History  of  the  Presidency  (1903),  180. 

40.  The  Democratic  party  as  the  champion  of  slavery    ....       95 

Ibid.,  249  sq. 

41.  The  platform  of  the  Republican  party  in  i860  ....       96 

Ibid.,  291  sqq. 


X  Contents  and  List  of  Citations 

PAGE 

42.  The  Republican  party  and  war  politics lOO 

Stanwood,  A  History  of  the  Presidency  (1903),  369  sqq. 

43.  The  character  of  Democratic  opposition  in  1884       ....     103 

Ibid.,  434  sqq. 

44.  The  social  cleavage  of  1896      .....,,.     105 

Official  Proceedings  of  the  Democratic  National  Convention,  1896, 
228  sqq. 

45.  Contemporary  political  issues  ........     107 

Official  Platform,  published   by  the  Republican  National  Com- 
mittee, 1908. 

CHAPTER   VII 
The  Development  of  Party  Machinery 

46.  The  legislative  nominating  caucus    .         .         .         .         .         .         .112 

Hammond,  J.  D.,  The  History  of  Political  Parties  in  the  Stale  of 
New  York,  I,  437  sq. 

47.  The  congressional  caucus  for  nominating  presidential  candidates     .     114 

Niles,   Weekly  Register,  I  (third  series),  388  sqq. 

48.  The  Tennessee  legislature  protests  against  the  caucus       .         .         .116 

Ibid.,  I  (third  series),  137  sq. 

49.  Jackson's  first  national  convention   .         .         .         .         .         .         .119 

Ibid.,  VI  (fourth  series),  234. 

50.  Benton's  criticism  of  the  convention  system      .....     120 

Benton,  T.  H.,   Thirty  Years'   View  (1854),  I,  49  sq. 

51.  Lincoln's  defense  of  the  convention  as  a  state  party  institution         .     123 

Complete   Works  of  Abraham  Lincoln   (Gettysburg  edition),  I, 
252  sqq. 

52.  The  municipal  boss .     125 

The  New  York  Times,  October  22,  1898. 

53.  A  state  political  machine  ........     127 

Ostrogorski,  Democracy  and  the  Organization  of  Political  Parties, 
II,  398  sqq. 

54.  The  political  party  included  in  the  legal   framework  of  govern- 

ment ...........     131 

Statutes  of  the  State  of  Oregon  relating  to  Elections  (1907). 


Contents  and  List  of  Citations  xi 

PART   ir.     THE   FEDERAL   GOVERNMENT 
CHAPTER  VIII 

The  General  Principles  of  the  Federal  System  of  Government 

PAGE 

55.  Original  limitations  on  the  power  of  the  federal  government   .         .     134 

The  federal  Constitution. 

56.  Limitations  imposed  on  the  federal  government  by  the  Amendments     135 

Ibid.,  Amendments  I-XI. 

57.  The  theory  of  the  separation  of  powers  in  the  federal  Constitution  .     138 

Kilbourn  v.  Thompson,  103  United  States  Reports,  168. 

58.  The  supremacy  of  federal  law  .         .         .         .         .         .         .         .     140 

Ableman  v.  Booth,  21  Howard,  506. 

59.  The  suffrage  under  the  federal  Constitution      .....     143 

Revised  Record  of  the  Constitutional  Convention  of  New  York 
(1894),  I,  618  sqq. 

60.  Reciprocal  guarantee  of  privileges  and  immunities  among  the  several 

states         ...........     146 

Story  on  the  Constitution  (1905),  II,  582  sqq.,  note. 

61.  Interstate  rendition 148 

Report  of  the  Attorney- General  of  Iowa  (1904),  226  sqq. 

62.  The  national  character  of  citizenship        .         .         .         .         .         .150 

United  States  v.  Wong  Kim  Ark,  169  United  States  Reports, 
649  sqq. 

CHAPTER   IX 
The  Nomination  and  Election  of  the  President 

63.  Constitutional  provisions  relating  to  the  election  of  the  President    .     154 

The  federal  Constitution. 

64.  The  choice  of  presidential  electors  .......     157 

Richardson,  Presidential  Messages,  IX,  208  sqq. 

65.  Counting  the  electoral  vote  in  the  states  ......     159 

Statutes  of  the  State  of  Oregon  relating  to  Elections,  1907. 

66.  The  call  for  the  national  convention         ......     160 

Official  Call,  issued  by  the  Republican  Committee,  1908  ;  Official 
Report  of  the  Proceedings  of  the  Democratic  National  Conven- 
tion, 1904,  I. 

67.  Convention  oratory  ..........     164 

Ibid.,  161  sqq. 

68.  The  Democratic  unit  rule         .        .        .         .        .        .        .        .     167 

Ibid.,  247  sq. 


xii  Contend  and  List  of  Citations 

PAGE 

69.  The  chairman  of  the  national  committee 169 

The  Atlantic  Monthly,  1902,  LXXXIX,  76  sqq. 

70.  The  national  campaign    . 171 

Review  of  Reviews,  XIV,  554  sqq. 

CHAPTER  X 
The  Powers  of  the  President 

71.  Constitutional  provisions .         ........     176 

The  federal  Constitution. 

72.  The  President  as  head  of  the  national  administration       .         .         .     177 

Opinions  of  the  Attorneys-General,  VII,  460  sqq. 

73.  The  President  as  national  spokesman  in  foreign  affairs    ,         .         .     183 

American  State  Papers  (second  edition),  I,  198. 

74.  The  war  powers  of  the  President      . 184 

Richardson,  Presidential  Messages,  IV,  674  sqq. 

75.  The  political  implications  of  the  veto  power     .....     187 

The  Works  of  Daniel  ^F^/«/^r  (eleventh  edition),  I,  266  sqq. 

76.  The  presidential  message  ........     192 

Benton,  T.  H.,  Thirty  Years'  View  (1854),  II,  32;   Richardson, 
Presidential  Messages,  I,  325. 

77.  Executive  influence  on  congressional  legislation       ....     193 

Congressional  Record,  XL,  Part  5,  4777  sqq. 

78.  How  executive  departments  may  draft  bills I96 

Ibid.,  XVII,  Part  i,  463. 

CHAPTER  XI 
The  National  Administration 

79.  The  President's  power  of  removal    .......     197 

Shurtleff  v.  United  States,  189  United  States  Reports,  311. 

80.  The  executive  departments  and  Congress  .....     200 

Congressional  Record,  XL,  Part  i,  22  sqq. 
.  81.   Power  of  administrative  officials  to  decide  cases  affecting  life,  liberty, 

and  property     ..........     202 

United  States  v.  Ju  Toy,  198  United  States  Reports,  253  sqq. 

82.  Fraud  orders  of  the  post-office  department       .....     204 

Congressional  Record,  XLI,  Part  i,  707  sqq. 

83.  The  spoils  system  in  national  administration 2o6 

Senate  Reports,  47th  Congress,  No.  567. 


Contents  and  List  of  Citations  xiii 

PAGE 

84.  The  civil  service  act 208 

Report  of  the   United  States  Civil  Service  Commission   (1908), 

43  ^qq- 

85.  President  Cleveland  and  the  place  hunters       .         .         .         .         .211 

Richardson,  Presidential  Messages,  IX,  399  sq. 

86.  Senatorial  courtesy  ..........     212 

Boutwell,  G.  S.,  Reminiscences  of  Sixty  Years  in  Public  Affairs, 
II,  282. 

87.  Congressmen  and  federal  officers      .         .         .         .         .         .         .213 

Lincoln,  Works,  II,  106  sq. 

CHAPTER  XII 

The  Congress  of  the  United  States 

88.  Provisions  of  the  federal  Constitution  relative  to  the  organization 

of  Congress       ..........     214 

The  federal  Constitution. 

89.  The  apportionment  of  representatives  among  the  states  .         .         .     218 

Statutes  at  Large,  XXXI,  733. 

90.  The  art  of  gerrymandering        ........     219 

Speeches  and  Addresses  of  William  McKinley,  23  sq. 

91.  The  law  governing  the  election  of  Senators 221 

Compiled  Statutes  of  the  United  States,  I,  7  sq. 

92.  The  original  purpose  of  the  Senate  .......     222 

The  Federalist,  Nos.  LXII  and  LXIII. 

93.  Popular  election  of  Senators  in  Oregon    ......     225 

Same  as  above,  No.  65. 

94.  The  question  of  popular  election  of  Senators 226 

Senate  Dociintent,  60th  Congress,  ist  Sess.,  Nos.  512  and  518. 

95.  The  instruction  of  representatives  in  Congress  ....     233 

Congressional  Record,  XVII,  Part  i,  I2I  ;    The  Works  of  Henry 
Clay  (Federal  ed.),  VIII,  135. 

CHAPTER   XIII 
The  Powers  of  Congress 

96.  Express  powers  conferred  on  Congress  by  the  Constitution      .        .     236 

The  federal  Constitution. 

97.  The  doctrine  of  strict  construction    .......     237 

MacDonald,  William,  Select  Documents  (1776-1861),  77  sqq. 


xiv  Contents  and  List  of  Citations 

PAGE 

98.  The  doctrine  of  liberal  construction 240 

Gibbons  v.  Ogden,  9  Wheaton,  i  sqq. 

99.  The  principle  of  liberal  construction  applied 241 

Knox  V.  Lee,  12  Wallace,  457  sqq. 

100.  The  "  necessary  and  proper "  clause 245 

Ibid. 

CHAPTER  XIV 

Congress  at  Work 

loi.    Party  organization  in  Congress 247 

Congressional  Record,  XL,  Part  3,  2207  sqq. 

102.  A  criticism  of  the  House  of  Representatives   .....     253 

Ibid.,  XL,  Part  9,  8831  sq. 

103.  Duties  of  the  speaker  of  the  House 256 

House  Mamial  (1908). 

104.  Political  significance  of  the  speakership 257 

Congressional  Record,  XL,  Part  5,  4807  sq. 

105.  The  sources  of  the  speaker's  power 260 

The  Arena,  XXH,  657  sqq. 

106.  How  the  House  disposes  of  business 262 

The  Independent,  LXIV,  579  sqq. 

107.  Congress  and  presidential  influence 265 

Congressional  Record,  XLII,  Part  4,  3370. 

108.  Departmental  preparation  of  bills 267 

Ibid.,  XLH,  Part  i,  299. 

109.  Log-rolling  in  Congress 269 

Ibid.,  XLII,  Part  5,  4614. 

no.   The  Senate  at  work 270 

The  Fontm,  XXXI,  425  sqq. 

111.  Communications  between  the  Houses     .....         o     272 

Congressional  Record,  XXXV,  Part  7,  6959. 

CHAPTER  XV 

The  Federal  Judiciary 

112.  Constitutional  provisions         ........     273 

The  federal  Constitution. 

113.  Power  of  t'le  courts  to  pass  on  the  constitutionality  of  federal 

statutes .         .     274 

Marbury  v.  Madison,  i  Cranch,  137. 


Contents  and  List  of  Citations  xv 

PAGE 

114.  Power  of  the  federal  courts  over  state  statutes        ....     278 

Martin  v.  Hunter's  Lessees,  i  Cranch,  304. 

115.  Jefferson's  criticism  of  the  Supreme  Court       .         .         .         .         .281 

Writings  of  Thomas  Jefferson  (1855  ed.),  133  and  I92. 
n6.    Political  questions  in  federal  cases.         ......     283 

Pollock  V.  Farmers'  Loan  and  Trust  Co.,  157  United  States  Re- 
ports, 532  sqq. 

117.  The  courts  and  social  policy 286 

Presidential  Message,  December  8,  1908. 

118.  The  place  of  the  Supreme  Court  in  our  system       ....     288 

Congressional  Record,  XLII,  Part  i,  589. 

CHAPTER   XVI 
Foreign  Affairs 

119.  The  organization  of  the  Department  of  State  ....     291 

Statutes  at  Large,  I,  28. 

120.  Duties  and  responsibilities  of  diplomatic  representatives         .         .     292 

Smithsonian  Miscellaneous  Collections,  HI,  Part  2,  II 7  sqq. 

121.  Expenses  connected  with  the  ambassadorial  rank   ....     295 

Congressional  Record,  XLH,  Part  6,  5575. 

122.  The  negotiation  of  treaties      ........     297 

Senate  Documents,  57th  Congress,   ist  Sess.,  XH,  6  sqq.  ;  Con- 
gressional Record,  XL,  Part  2,  1418  sqq. 

123.  The  recognition  of  a  new  government    ......     302 

J.  B.  Moore,  A  Digest  of  International  I.aiv,  I,  97  ;    Congres- 
sional Record,  XXXVHI,  Part  I,  323  sq. 

124.  An  arbitration  treaty       .........     305 

Supplement    to    the  American  Journal   of  International    Law 
(1908),  II,  298  sq. 

CHAPTER   XVII 
National  Defense 

125.  The  national  militia        .........     308 

United  States  Statutes  at  Large,  XXVII,  Part  I,  775  sqq. 

126.  The  organization  of  the  standing  army   ......     309 

Statutes  of  the  United  States,  1 900-0 1,  748. 

127.  The  declaration  of  war  .........     310 

Richardson,  Presidential  Messages,  X,  20I. 

128.  The  call  for  volunteers  .........     310 

Ibid.,  X,  203  sq. 


xvi  Contents  and  List  of  Citations 

PAGE 

129.  Establishment  of  a  blockade 312 

Richardson,  Presidential  Messages,  X,  202  sq. 

130.  The  direction  of  the  war  ........     313 

(a)  The  VVorld^s  Work,  III,  1841  sqq.;  (b)  Gorham,  Life  and 
Public  Services  of  Edwin  M.  Stanton,  II,  99  sq. ;  (c)  Corre- 
spondence relating  to  the  War  ivith  Spain,  18  sq. 

131.  Use  of  troops  in  domestic  disturbances 317 

Grover  Cleveland,  Presidential  Problems,  105  sq. 

132.  Use  of  troops  in  domestic  disasters 318 

Report  of  the  War  Departmettt  (1906),  548. 

133.  The  American  theory  of  national  defense       .         .         .         *         .    320 

Congressional  Record,  XXXIV,  Part  2,  1024  sqq. 

CHAPTER   XVIII 
Taxation  and  Finance 

134.  The  uniformity  rule  applied  to  indirect  taxes  .         .         .         •     323 

Knowlton  v.  Moore,  1 78  United  States  Reports,  43  sqq. 

135.  The  apportionment  of  direct  taxes  ......     327 

United  States  Statutes  at  Large,  1859-63,  294. 

136.  The  income  tax       ..........     328 

Pollock  V.  Farmers'  Loan  and  Trust  Company,  158  United 
States  Reports,  6x8  sqq. 

137.  The  constitutionality  of  the  protective  tariff 330 

Works  of  John  C.  Calhoun,  VI,  2  sqq. 

138.  Social  implications  of  the  taxing  power 331 

Congressional  Record,  XLII,  Part  I,  71  sq. 

139.  Preparation  of  a  revenue  bill 333 

Life  and  Times  of  Nelson  Dingley,  414  sqq, 

140.  Extract  from  the  Dingley  Tariff  Act        ......     337 

United  States  Statutes  at  Large,  XXX,  15 1  sqq. 

141.  Obtaining  estimates  for  appropriations  ......     338 

Library  of  Congress  (Hearing  on  the  Legislative,  Executive, 
and  Judicial  Appropriation  Bill,  1907),  38  sqq.  ;  Statutes  of 
the  United  States,  1900-01  (Concurrent  Resolutions),  6. 

142.  Extract  from  an  appropriation  bill 341 

Statutes  of  the  United  States,  1905-06,  389  sqq. 

CHAPTER   XIX 
The  Regulation  of  Commerce 

143.  Constitutional  provisions 343 

The  federal  Constitution. 


Contents  and  List  of  Citations  xvii 


144.  Judicial  interpretation  of  the  term  "  commerce "     .         .         .         .     343 

Gibbons  v.  Ogden,  9  Wheaton,  i  sqq. 

145.  State  interference  with  interstate  commerce   .         .  .         .         .     348 

Case  of  the  State  Freight  Tax,  15  Wallace,  232  sqq, 

146.  Condition  of  transportation  in  1885         ......     352 

Senate  Report,  No.  46  ;   49th  Congress,  1st  Sess, 

147.  The  interstate  commerce  commission  at  work         ....     356 

Interstate  Commerce  Reports,  XII,  325  sq. 

148.  The  anti-trust  act  of  1890 358 

Statutes  at  Large,  XXVI,  209  sq. 

CHAPTER  XX 

National  Resources 

149.  The  governors'  conference,  1908 361 

The  Outing  Magazine,  LII,  491  sqq. 

150.  Why  forest  reservations  should  be  made  .....     364 

House  Reports,  59th  Congress,  1st  Sess.,  No.  4399. 

151.  The  national  forest  reserves    ........     366 

The  Independent,  LXIV,  1374  sqq. 

152.  The  reservation  of  mineral  lands    .......     368 

Senate  Document,  59th  Congress,  2d  Sess.,  No.  310. 

153.  The  reclamation  of  arid  lands         .......     371 

Congressional  Record,  XXXV,  Part  8,  253  sqq. 

CHAPTER   XXI 

The  Government  of  Territories 

154.  Constitutional  limitations  on  Congress  in  governing  territories        .     375 

Dorr  V.  United  States,  195  United  States  Reports,  138  sqq. 

155.  Our  relations  with  Cuba  ........     378 

Statutes  at  Large,  XXX,  738  ;    Statutes  of  the    United  States, 
1900-01,  897  sq. 

156.  Principles  of  American  policy  in  the  Philippines    ....     380 

Congressional  Record,  XXXIV,  Part  i,  8  sqq. 

157.  The  Philippine  assembly         ........     385 

Report  of  the  Philippine  Commission,  1 907,  I,  213  sqq. 

158.  The  organization  of  government  in  Porto  Rico        ....     388 

Statutes  of  the  United  States,  1899-90,  79  sqq. 


XVlll 


Contents  and  List  of  Citations 


PART   III.     STATE  GOVERNMENT 

CHAPTER   XXII 

The  Constitutional  Basis  of  State  Government 

PAGE 

159.  Federal  limitations  on  state  authorities 391 

The  federal  Constitution. 

160.  The  police  power  of  the  state  .......     394 

Barbier  v.  Connolly,  113  United  States  Reports,  27  ;  Lawton  v. 
Steele,  152  United  States  Reports,  133. 

161.  How  a  territory  is  authorized  to  form  a  constitution       .         .         .     397 

Debates  of  the  Co7istitutional  Convention  of  Utah,  1898,  3  sqq. 

162.  Suffrage  qualifications  in  New  York  state        .....     399 

Extract  from  the  New  York  constitution. 

163.  The  exclusion  of  negroes  from  the  suffrage     .....     401 

Extract  from  the  Constitution  of  Virginia,  1902 ;  Journal  of 
the  Louisiana  Convention,  1898,  374  sq. 

164.  Arguments  on  woman's  suffrage      .......     405 

Revised  Record  of  the  Constitutional  Convention  of  New  York, 
1894,  II,  444  sqq.  ;  Orations  of  George  William  Curtis,!,  182 
sgq. 

CHAPTER   XXIII 


165. 


166. 


169. 


170. 


Popular  Control  in  State  Governments 


The  New  York  amendment  system 

Extract  from  the  New  York  constitution. 

The  initiative  and  referendum  in  Oklahoma  . 
Extract  from  the  Oklahoma  constitution. 

167.  Educating  the  voters  in  Oregon 

Statutes  of  Oregon  relating  to  Elections,  1907. 

168.  A  public  opinion  bill       ..... 

Senate  Document,  No.  114,  60th  Congress,  1st.  Sess. 
Arguments  for  the  initiative  and  referendum  . 

The  Arena,  May  and  June,  1906. 
Arguments  against  the  initiative  and  referendum 

Same  as  above,  No.  168. 


411 
413 
415 
418 
419 
424 


CHAPTER   XXIV 

The  State  Executive  Department 


171.  The  legal  position  of  the  governor 

Field  V.  The  People,  3  Illinois  Reports,  79. 


432 


Contents  and  List  of  Citations  xix 

PAGE 

172.  The  question  of  centralization  in  administration     ....     436 

Inaugural  Address  of  Governor  I/ug/ies,  1909.     Pamphlet. 

173.  The  method  of  selecting  state  officers     ......     438 

Debates  in  the  Kentucky  Constitutional   Convention,   1S90,   I, 
1419  s,jq. 

174.  The  growth  of  executive  influence 442 

T/ie  Nation,  LXXXVl,  208  sqq. 

175.  The  veto  power 444 

Same  as  above,  No.    173,  I,    1482  sqq.;  Papers  of  Frank   S. 
Black,  Governor  of  New  York,  1898,  I,  64. 

176.  The  call  of  an  extraordinary  session 447 

Public  Papers  of  Cover 7! or  Roosevelt,  1S99,  I02  sqq. 

177.  An  exercise  of  the  pardoning  power 448 

Ibid.  (1900),  218. 

178.  Martial  law 449 

Senate  Documents,  58th  Congress,  3d  Sess.,  Til,  207  sqq. 

179.  Legal  advice  to  the  governor 452 

Report  of  the  Attorney-General  (Iowa),  1904,  58  sqq. 

180.  Government  by  commission 453 

Same  as  above,  No.  164,  II,  843  sqq. 

CHAPTER   XXV 

The  State  Legislature 

181.  Special  limitations  on  the  legislature 457 

Extracts  from  the  New  York  constitution. 

182.  Legislative  apportionment      ........     462 

Same  as  above,  No.  164,  III,  1083,  1162;   IV,  34  sqq, 

183.  Legislative  procedure 466 

Ibid.,  I,  479  sq. 

184.  Problems  of  legislative  reform 467 

Report  of  the  Commission  to  Recommend  Changes  in  Methods  of 
Legislation,  New  York,  1S95,  7  ^11- 

185.  The  legislative  committee  of  inquiry       ......     471 

Report  of  the  foint  Committee  on  Highways,  New  York,  1908, 
I  sqq. 

186.  The  legislative  reference  bureau     . 473 

Review  of  Reviews,  XXXII,  722  sq, 

187.  The  evils  of  over-legislation    ........     475 

Report  of  the  American  Bar  Association,  1906,  Part  i,  383  sqq. 


XX  Contents  and  List  of  Citations 

PAGE 

1 88.  Legislatures  and  railways 478 

Same  as  above,  No.  164,  IV,  483  sqq. 

1 89.  The  organization  of  a  lobby    ........     482 

Testimony  before  the  Legislative  Insurance  Investigating  Com- 
mittee of  New  York,  II,  1925  sqq. 

190.  Legislation  against  corporations 484 

Ibid.,  II,  1560  sq. 

191.  Keeping  track  of  legislators .     486 

Pamphlet  pubhshed  by  the  Citizens  Union,  1907. 

CHAPTER  XXVI 
The  Judicial  System 

192.  The  independence  of  the  judiciary 488 

Same  as  above,  No.  187,  for  the  year  1889,  272  sqq. 

193.  The  judiciary  as  the  guardian  of  private  rights        ....     491 

Debates  and  Proceedings  of  the  Maryland  Constitutional  Conven- 
tion, 1 85 1,  II,  473  sqq. 

194.  The  methods  of  selecting  judges 492 

Debates   of  the   A^ew   York    Constitutional   Convention,    1846, 
141  sqq. 

195.  The  jury  system 495 

Same  as  above,  No.  187,  for  the  year  1898,  285  sqq.;  same  as 
above,  No.  164^  I,  798  sq. 

196.  The  law's  delays 500 

Same  as  above.  No.  187,  for  the  year  1885,  323  sqq. 

197.  Corruption  in  the  police  administration  .....     505 

Report  of  the  Senate    Committee  Appointed  to  Investigate  the 
Police  Department  of  the  City  of  New  York,  V,  5340  sqq. 

CHAPTER  XXVII 

The  Organization  of  Municipal  Government 

Ig8.    Home  rule  for  cities .         .         .     5°9 

Same  as  above,  No.  164,  II,  235  sqq. 

199.  Popular  charter  drafting 510 

Extract  from  the  constitution  of  California  (amendment,  1905). 

200.  The  New  York  check  on  the  legislature  .....     512 

Extract  from  the  New  York  constitution. 


Contents  and  List  of  Citations  xxi 


201.  The  leading  difficulties  in  city  government 514 

Testimony  taken  before  the  Senate   Committee  on   Cities,   1890, 
V,  10  sqq. 

202.  Decentralized  municipal  administration 517 

Jllayors'  Addresses,  1829-91  (Boston),  6  sq. 

203.  The  mayor's  power  in  New  York  City    .         .         .         .         .         -5^9 

Extract  from  the  charter  of  New  York  City. 

204.  The  council  and  municipal  administration 521 

Boston  Finance  Commission,  Final  Repo7-ts   (January,    1909), 
24  sqq. 

205.  A  plea  for  the  rehabilitation  of  the  city  council      ....     526 

Same  as  above,  No.  164,  II,  233  sqq. 

206.  Municipal  government  by  commission    ......     529 

Supplement  to  the  Code  of  loiva  (1907),  208  sqq. 

207.  Municipal  legislative  reference 533 

Digest  of  City  Charters  (Hatton,  A.  R.,  editor),  Chicago,  1906, 

SSI- 
CHAPTER   XXVIII 

Municipal  Functions 

208.  Municipal  waterworks 535 

Statistics  of  Cities  having  a  Population  of  over  30,000  (1907), 
Bureau  of  the  Census,  1907,  63  sqq. 

209.  A  mayor's  fight  for  good  electric  light  service         ....     538 

Atlantic    City   Conference  for   Good  City  Government  (1906), 
271  sqq. 

210.  Work  of  a  tenement  house  department  ......     540 

First  Report  of  the  Tenement  House  Department  of  the  City  of 
New  York,  1902-03,  \,  ^  sq. 

211.  The  health  department  of  a  city 543 

Report  of  the  Public  Health  Department  (Cleveland,  Ohio,  1906). 

2X2.    Municipal  parks 545 

Annual  Report  of  the  Board  of  Public  Service :  Division  of 
Parks  (Cleveland,  Ohio,  1906). 

213.  The  question  of  municipal  ownership     ......     54^ 

Municipal  and  Private  Operation  of  Public  Utilities  (Report  to 
the  National  Civic  Federation),  I,  23  sqq. 

214.  The  case  for  municipal  ownership  . 549 

Parsons,  The  City  for  the  People,  221  sqq. 


xxii  Contents  and  List  of  Citations 

PAGE 

215.  Politics  and  public  utilities     ........     552 

Same  as  above,  No.  213,  I,  89  sqq. 

216.  The  labor  problem  in  a  city  department  .....     554 

Waring,  G.  E.,  Street- Cleaning  {i2>^']'),  25  sq. 


CHAPTER  XXIX 

Local  Government 

217.   The  New  England  town  meeting    .......     556 

From  the  official  leaflets, 
2iS.   The  Indiana  township    .........     560 

Horner,  F.  A.,  The  /revised  Statutes  of  Indiana,  H,  Sees.  6000  sqq. 

219.  The  county  council  .........     561 

Ibid.,  Sees.  5730  sqq. 

220.  Centralization  of  administrative  supervision    .....     563 

Public  Papers  of  Theodore  Roosevelt,  Governor,  1899,  193. 

221.  Central  control  of  local  finance       .......     565 

Bates,  C,   The  Annotated  Revised  Statutes  of  Ohio  (1905),  I, 
114  sqq. 

CHAPTER   XXX 
Politics  and  Government 

222.  The  operations  of  a  municipal  boss 567 

Investigation  of  the  Offices  and  Departments  of  the  City  of  New 
York,  1899,  I,  326  sq.,  454  sq.  ;  IH,  2963  sqq. 

223.  Corporations  in  politics  .........     572 

Senate  Reports,  53d  Congress,  2d  Sess.,  X,  655  sqq. 

224.  Office  holders  in  politics  ........     578 

Parker,  G.  F.,   Writings  of  Grover  Cleveland,  49  sq. 

225.  An  assembly  district  leader  at  work        ......     579 

New  York  Evening  Post,  December  14,  1907. 

226.  Charity  in  Tammany  politics  ........     581 

New  York  Times,  September  I,  1908;   February  7,  1908. 

227.  Some  primitive  election  devices      .......     584 

National  Conference  on  Practical  Reform  of  Primary  Elections 
(1898),  126  sqq. 

228.  State  control  of  party  organization  ......     586 

Extract  from  the  Election  Lmv  of  Illinois,  1908. 


Contents  and  List  of  Citations  xxiii 

CHAPTER   XXXI 
Taxation  and  Finance 

PACK 

229.  The  problem  of  assessing  property  ...  .        .     590 

Report  of  the  Minnesota  Tax  Commission,  1908,  20  sq. 

230.  Separation  of  state  and  local  revenues    ......     592 

Ibid.,  203  sqq. 

231.  Taxation  of  personal  property         .......     597 

Ibid.,  30  sqq.  ;    Report  of  the  Special  Tax   Commission  of  New 
York,   1907,  57  sq. 

232.  The  inheritance  tax         .........     603 

Report  of  the  Wisconsin  Tax  Commission,  1903,  ^<)  sqq. 

CHAPTER  XXXH 
Social  and  Economic  Legislation 

233.  The  spirit  of  opposition  to  corporations ......     606 

Same  as  above,  No.  164,  IV,  1068  sqq. 

234.  Control  of  railways  by  commission  ......     609 

Extract  from  the  constitution  of  Oklahoma. 

235.  The  operations  of  a  railway  commission  .....     6X2 

Report  of  the  North  Carolina    Corporation    Commission,   1907, 
I  sqq. 

236.  Control  of  state  regulation  by  the  federal  judiciary  .         .         .     614 

Chicago,  etc.  Railway  Company  v.  Minnesota,  134  United  States 
Reports,  418. 

237.  The  Supreme  Court  and  labor  legislation        .....     617 

Lockner  v.  New  York,  198  United  States  Reports,  75. 

Index 621 


PART    I 
HISTORICAL   INTRODUCTION 

CHAPTER  I 


based  on  ex- 
perience, not 
on  theories. 


COLONIAL   ORIGINS    OF   AMERICAN   INSTITUTIONS 

There  is  a  lingering  tradition  in  the  United  States  that  the  American 
men  of  the  eighteenth  century  who  laid  the  foundations  of  our  institutions 
system  of  government  broke  violently  from  political  experience 
and  sought  their  guidance  in  the  abstract  principles  of  the  rights 
of  man.  As  a  matter  of  fact,  however,  the  Revolutionary  Fathers 
had  no  quarrel  with  the  fundamental  English  institutions  under 
which  they  lived;  their  revolt  was  against  the  colonial  poHcy  of 
the  British  government,  — ■  a  protest  against  definite  measures 
which  affected  them  adversely,  not  a  demand  for  the  realization 
of  the  equalitarian  notions  enunciated  in  the  Declaration  of  Inde- 
pendence, which  served  very  well  to  justify  the  Revolution,  but 
afiforded  no  practical  basis  for  the  reconstruction  of  the  political 
system  after  British  dominion  was  thrown  off.  Neither  in  the 
creation  of  the  state  governments  nor  in  the  formation  of  the 
Union  did  the  Fathers  depart  very  radically  from  experience,  and 
even  their  departures  were  reactions  against  concrete  abuses  rather 
than  attempts  at  ideal  creations.  With  governors,  councils, 
legislatures,  judicial  systems,  municipal  and  local  governments, 
and  their  operations  under  American  conditions,  they  were  fa- 
miHar;  and  as  most  of  them  were  staid  and  conservative  men, 
well  schooled  in  the  actual  management  of  public  business,  they 
had  neither  interest  nor  desire  to  lead  them  into  experiments  in 
theoretical  pohtics.  The  sources  of  American  government,  there- 
fore, are  to  be  sought  not  in  the  realms  of  political  philosophy, 
but  in  the  dry  records  which  describe  the  institutional  heritage 
with  which  the  new  nation  began  its  career  of  independence. 

On  the  eve  of  the  Revolution,  the  American  colonies  fell  into 
three  general  groups,  according  to  the  customary  classification: 


2  American   Government  and  Politics 

royal,  corporate,  and  proprietary.  The  governments  of  all  of 
them,  however,  were  based  on  written  documents  issued  by  the 
English  crown  and  Hmited  by  them  as  well  as  by  statutes  passed 
by  Parliament  from  time  to  time.  The  general  outlines  for  the 
government  of  the  royal  province,  for  example,  were  laid  down 
in  the  governor's  commission,  of  which  the  following,  issued  by 
George  III  for  New  Hampshire,  may  be  taken  as  typical:  — 


I.    The  Royal  Province  * 

George  the  Third  by  the  Grace  of  God  of  Great  Britain,  France, 
and  Ireland,  King,  Defender  of  the  Faith   &  so  forth. 

To   our  Trusty  and  well   beloved   Benning   Wentworth   Esquire, 

Greeting : 

Know  you,  That  Wee,  reposing  especial  Trust  and  Confidence 
in  the  Prudence,  Courage  and  Loyalty  of  you  Benning  Went- 
worth, of  our  Especial  grace,  certain  Knowledge  and  meer  motion, 
Have  thought  fit  to  constitute  and  appoint  you  .  .  .  the  said 
Benning  Wentworth  to  be  our  Governour  and  Commander-in- 
chief  of  our  province  of  New  Hampshire  vdthin  our  Dominion  of 
New  England  in  America  .  .  .  with  all  &  singular  the  Powers 
and  Authoritys  hereby  granted  you  for  and  during  our  will  and 
Pleasure : 

And  We  do  hereby  require  &  Command  you  to  do  &  Execute 
all  things  in  due  manner  that  shall  belong  unto  your  said  Com- 
mand and  the  Trust  we  have  reposed  in  you  according  to  the 
several  Powers  and  Directions  granted  or  appointed  you  by  this 
Present  Commission  and  the  Instructions  &  Authorities  herewith 
given  or  by  such  further  Powers,  Instructions,  and  Authorities  as 
shall  at  any  time  be  granted  or  appointed  you  under  our  signet  & 
sign  manual  or  by  our  Order  in  our  Privy  Council  &  according  to 
such  reasonable  Laws  and  Statutes  as  now  are  in  force  or  here- 
after shall  be  made  &  agreed  upon  by  you  with  the  advice  &  con- 
sent of  our  Council  «Sz:  the  Assembly  of  our  said  Province  and 
Plantation  under  your  Government,  in  such  manner  &  form  as 
is  hereafter  expressed. 


Colonial   Origins  of  American  Institutions         3 

And  wee  do  hereby  give  &  grant  unto  you  full  Power  and  au-  The 
thority  to  suspend  any  of  the  members  of  our  said  Council  from  council 
sitting,  Voting  &  assisting  therein,  if  you  shall  find  just  cause  for 
so  doing:  and  if  it  shall  at  any  time  happen  that  by  the  Death, 
Departure  out  of  our  said  Province,  suspension  of  any  of  our 
said  Councillors,  or  otherwise  there  shall  be  a  Vacancy  in  our 
said  Council,  any  three  whereof  we  do  hereby  appoint  to  be  a 
Quorum,  our  Will  &  Pleasure  is  that  you  signify  the  same  to  us 
by  the  first  opportunity,  that  wee  may  under  our  signet  and  sign 
manual  constitute  &  appoint  others  in  their  stead;  but  that  our 
affairs  at  that  Distance  may  not  suflfcr  for  want  of  a  due  number 
of  Councillors,  if  ever  it  shall  happen  that  there  shall  be  less  than 
seven  of  them  residing  in  our  said  Province,  Wee  do  hereby  give 
&  grant  unto  you  the  said  Penning  Wentworth  full  Power  & 
Authority  to  choose  as  many  Persons  out  of  the  Principal  Free- 
holders Inhabitants  thereof  as  will  make  up  the  full  Number  of 
our  said  Council  to  be  seven  &  no  more,  which  persons  so  chosen 
&  appointed  by  you  shall  be  to  all  intents  &  Purposes  Council- 
lors in  our  said  Province  until  either  they  shall  be  confirmed  by 
us  or  that  by  the  nomination  of  others  by  us  under  our  sign  manual 
&  signet  our  Council  shall  have  seven  or  more  Persons  in  it: 

And  wee  do  hereby  give  &  grant  unto  you  full  Power  &  Au-    Governor 
thority  with  the  advice  &  consent  of  our  said  Council  from  time   emnower*d 
to  time  as  need  shall  require  to  summon  &  call  General  Assem-   to  call  an 
blys  of  the  said  Freeholders  &  Planters  within  your  Government   ^^^™°'y- 
in  manner  &  form  according  to  the  usage  of  our  Province  of  New 
Hampshire : 

Wee  do  hereby  Declare  that  the  Persons  so  elected  &  qualified   The  gov- 
shall  be  called  &  Deemed  the  General  Assembly  of  that  our  said   ^["and  as"' 
Province  &  Plantation  and  that  you  the  said  Benning  Wentworth   sembly 
with  the  consent  of  our  said  Council  &  Assembly  or  the  major   "^^y^^ke 
part  of  them  respectively  shall  have  full  Power  &  Authority  to 
make  Constitute  and  ordain  Laws,  Statutes  and  Ordinances  for 
the  Publick  Peace,  Welfare  and  good  Government  of  our  said 
Province  &  of  the  People  &  Inhabitants  thereof,  and  such  others 


4 


American   Government  and   Politics 


as  shall  resort  thereto,  and  for  the  Benefit  of  us  our  Heirs  &  Suc- 
cessors, which  said  Laws,  Statutes  &  ordinances  are  not  to  be 
repugnant,  but  as  near  as  may  be  agreeable  to  the  laws  &  Stat- 
utes of  this  our  Kingdom  of  Great  Britain. 

Provided  that  all  such  Statutes  &  ordinances  of  what  nature  & 
Duration  soever  be  within  three  months  or  sooner  after  the  making 
thereof  transmitted  unto  us  under  our  Pubhck  Seal  of  New  Hamp- 
shire for  our  approbation  or  Disallowance  of  the  same,  as  also 
Duplicates  thereof  by  the  next  conveyance,  and  in  case  any  or 
all  of  the  said  Laws  Statutes  &  ordinances  not  before  confirmed 
by  us  shall  at  any  time  be  disallowed  &  not  approved  &  so  sig- 
nified by  us  our  Heirs  or  successors  under  our  or  their  sign  manual 
&  signet  or  by  order  of  our  or  their  privy  Council  unto  you  the 
said  Benning  Wentworth  or  to  the  Commander-in-Chief  of  our 
said  province  for  the  time  being,  then  such  &  so  many  of  the  said 
Laws  Statutes  &  ordinances  as  shall  be  so  disallowed  and  not 
approved,  shall  from  thence  cease.  Determine  &  become  utterly 
void,  &  of  none  effect,  any  thing  to  the  contrary  thereof  notwith- 
standing. 

And  to  the  End  that  nothing  may  be  passed  or  done  by  our  said 
Council  or  Assembly  to  the  Prejudice  of  us  our  Heirs  &  Successors 
We  will  &  ordain  that  you  the  said  Benning  Wentworth  shall 
have  &  enjoy  a  negative  Voice  in  the  making  &  Passing  of  all 
Laws  &  Statutes  &  ordinances  as  aforesaid,  and  you  shall  and 
may  likewise  from  time  to  time  as  you  shall  judge  it  necessary, 
adjourn.  Prorogue  &  Dissolve  all  General  Assemblies  as  aforesaid. 
Our  further  Will  &  Pleasure  is,  that  you  shall  and  may  keep  and 
use  the  Publick  Seal  of  our  Province  of  New  Hampshire  for  sealing 
all  things  whatsoever  that  Pass  the  Great  Seal  of  our  said  Province 
under  your  Government. 

And  We  do  hereby  authorize  and  empower  you  to  constitute 
and  appoint  Judges  and  in  cases  requisite  Commissioners  of  Oyer 
and  Terminer,  Justices  of  the  Peace  and  other  necessary  officers 
and  ministers  in  our  said  Province  for  the  better  administration 
of  Justice  and  putting  the  Laws  in  execution,  and  to  administer 


Colonial   Origins  of  American  Institutions         5 

or  cause  to  be  administered  unto  them  such  oath  or  oaths  as  are 
usually  given  for  the  due  execution  and  Performance  of  ofl5ces 
and  Places  and  for  the  clearing  of  Truth  in  Judicial  Causes. 

And  we  do  hereby  give  and  grant  unto  you  full  Power  and   The 
authority  where  you  shall  see  cause  or  shall  Judge  any  offender  of  ^pardons 
or  offenders  in  criminal  matters  or  for  any  Fines  or  Forfeitures   and 
due  unto  us  fit  objects  for  our  mercy  to  Pardon  all  such  offender  ^'^P"^^^^- 
or  offenders,  and  to  remit  all  such  lines  and  forfeitures,  Treason 
and  WillfuU  murder  only  excepted,  in  which  cases  you  shall  like- 
wise have  Power  upon  extraordinary  occasions  to  grant  reprieves 
to  the  offenders  until  and  to  the  Intent  our  royal  Pleasure  may  be 
known  therein. 

And  We  do  hereby  give  and  grant  unto  you  the  said  Benning  The 
Wentworth  by  yourself  or  by  your  Captains  and  Commanders  ^{jtary 
by  you  to  be  authorized,  full  Power  and  authority  to  Levy,  arm,  commander. 
muster,  command  and  Employ  all  persons  whatsoever  residing 
within  our  said  Province  &  Plantations,  and  as  occasion  shall 
serve  to  march  from  one  place  to  another  or  to  embark  them  for 
the  resisting  and  withstanding  of  all  Enemies,  Pyrates  &  rebels 
both  at  Land  and  Sea,  and  to  transport  such  forces  to  any  of 
our  Plantations  in  America  if  necessity  shall  require  for  the 
Defence  of  the  same  against  the  Invasions  or  attempts  of  any  of 
our  Enemies,  and  such  Enemies,  Pirates  and  rebels,  if  there  shall 
be  occasion  to  pursue  and  prosecute  in  or  out  of  the  limits  of  our 
said  Province  &  Plantation  or  any  of  them,  and  if  it  shall  so  Please 
God,  them  to  vanquish,  apprehend  and  take,  and  being  taken 
according  to  Law  to  put  to  Death,  or  keep  or  Preserve  alive  at 
your  discretion,  and  to  Execute  martial  Law  in  time  of  Invasion 
or  other  times,  when  by  Law  it  may  be  executed,  and  to  do  and 
execute  all  and  every  other  thing  and  things  which  to  our  Com- 
mander-in-Chief doth  or  ought  of  right  to  belong. 

Forasmuch  as  mutinies  &  Disorders  may  happen  by  persons   The 
Employed  at  sea  during  the  time  of  war,  and  to  the  End  that   fplo^nt"^ 
such  persons  as  shall  be  shipped  &  Employed  at  sea  during  the    naval 
time  of  war,  may  be  the  better  governed  and  ordered.  We  do  hereby 


6  American   Government  and  Politics 

give  and  grant  unto  you  the  said  Benning  Wentworth  our  Gov- 
ernor and  Commander-in-Chief  full  Power  &  authority  to  consti- 
tute and  appoint  Captains,  Lieutenants,  masters  of  ships  &  other 
Commanders  &  officers,  Commissions  to  Execute  the  Law  mar- 
tial, &  to  use  such  Proceedings,  authorities.  Punishments,  Correc- 
tions and  Executions  upon  any  offender  or  offenders  which  shall 
be  seditious,  mutinous.  Disorderly  or  any  way  unruly  cither  at 
sea  or  during  the  time  of  their  abode  or  residence  in  any  of  the 
Ports  Harbours  or  Bays  of  our  said  Province  or  Territories  as  the 
case  shall  be  found  to  require,  according  to  the  martial  Law  and 
the  said  Directions  during  the  time  of  War  as  aforesaid. 

And  We  do  hereby  command  all  officers  and  ministers  civil  & 
miHtary  and  all  other  Inhabitants  of  our  said  Province  to  be  obedi- 
ent aiding  and  assisting  unto  you  the  said  Benning  Wentworth  in 
the  Execution  of  this  our  Commission  and  of  the  Powers  and 
authorities  herein  contained,  and  in  case  of  your  Death  or  ab- 
sence out  of  said  Province  unto  such  person  as  shall  be  appointed 
by  us  to  be  our  Lieutenant  Governor  or  Commander  in  Chief  of 
our  said  Province  to  whom  we  do  therefore  by  these  Presents  give 
and  grant  all  &  singular  the  Powers  and  authorities  aforesaid  to 
be  executed  &  enjoyed  by  him  during  our  Pleasure  or  until  you 
return  to  our  said  Province ;  and.  If  upon  your  Death  or  absence 
out  of  said  Province  of  New  Hampshire  there  be  no  Person  upon 
the  place  Commissionatcd  or  appointed  by  us  to  be  our  Lieutenant 
Governor  or  Commander  in  chief  of  our  said  Province,  our  Will  & 
Pleasure  is  that  the  Eldest  Councillor  whose  Name  is  first  placed 
in  our  said  Instructions  to  you,  and  who  shall  be  at  the  time  of 
your  death  or  absence  residing  within  our  said  Province,  shall  take 
upon  him  the  administration  of  the  Government  and  Execute  our 
said  Commission  and  Instructions  and  the  several  Powers  and 
authorities  therein  contained. 


2.    The  Corporate  Colony 

The  second  type  of  American  colony  was  a  company  of  men 
formed  into  a  body  corporate  by  a  royal  charter  and  authorized 


Colonial  Origins  of  American   Institutions         7 

to  set  up  a  government,  admit  new  members,  and  conduct  their 
local  affairs  with  a  large  degree  of  freedom.  The  following  ex- 
tract from  a  charter  of  Rhode  Island  and  Providence  Plantations 
gives  the  most  important  part  of  the  document  dealing  with  the 
form  of  government :  — 

Charles  the  Second,  by  the  grace  of  God,  King  of  England, 
Scotland,  France  and  Ireland,  Defender  of  the  Faith,  &c.,  to  all 
to  whome  these  presents  shall  come,  greeting:  .  .  . 

And  accordingely  our  will  and  pleasure  is,  and  of  our  especiall  Certain 
grace,  certaine  knowledge,  and  meere  motion,  wee  have  ordeyned,  stituted  a 
constituted  and  declared,  and  by  these  presents,  for  us,  our  heires  body 
and  successors,  doe  ordeyn,  constitute  and  declare,  That  they,  ^°^P°^^  ^• 
the  sayd  WiUiam  Brenton,  William  Codington,  Nicholas  Easton, 
Benedict  Arnold,  William  Boulston,  &c.  .  .  .  and  all  such  others 
as  now  are,  or  hereafter  shall  bee  admitted  and  made  ffree  of  the 
company  and  society  of  our  collonie  of  Providence  Plantations, 
in  the  Narragansett  Bay  in  New  England,  shall  bee,  from  tyme 
to  tyme,  and  forever  hereafter,  a  bodie  corporate  and  politique, 
in  ffact  and  name,  by  the  name  of  The  Governor  and  Company 
of  the  English  Colony  of  Rhode  Island  and  Providence  Plantations, 
in  New  England,  in  America;  and  that  by  the  same  name,  they 
and  their  successours  shall  and  may  have  perpetuall  succession, 
and  shall  and  may  bee  persons  able  and  capable,  in  the  lawe,  to 
sue  and  bee  sued,  to  pleade  and  be  impleaded,  to  answeare  and 
be  answeared  unto,  to  defend  and  to  be  defended,  in  all  and  sin- 
gular suites,  causes,  quarrels,  matters,  actions  and  thinges,  of 
whatever  kind  or  nature  soever;  and  alsoe  to  have,  take,  possesse, 
acquire,  and  purchase  lands,  tenements,  or  hereditaments,  or  any 
goods  or  chattels,  and  the  same  to  lease,  graunt,  demise,  aliene, 
bargaine,  sell,  and  dispose  of,  at  their  owne  will  and  pleasure,  as 
other  our  liege  people  of  this  our  realme  of  England,  or  anie  cor- 
poration or  bodie  politique  within  the  same  may  lawfully  doe. 

And  further,  wee  will  and  ordeyne,  and  by  these  presents,  for  The 
us,  oure  heires,  and  successours,  doe  declare  and  appoynt  that  for  assistants'^ 
the  better  ordering  and  managing  of  the  affaires  and  business  of 


8 


American   Government  and   Politics 


the  sayd  Company,  and  theire  successours,  there  shall  bee  one 
Governour,  one  Deputie-Governour  and  ten  Assistants,  to  bee, 
from  tyme  to  tyme,  constituted,  elected,  and  chosen,  out  of  the 
freemen  of  the  sayd  Company,  for  the  tyme  beinge,  in  such  manner 
and  fforme  as  is  hereafter  in  these  presents  expressed;  which 
sayd  officers  shall  aplye  themselves  to  take  care  for  the  best  dis- 
poseinge  and  orderinge  of  the  generall  businesse  and  affaires  of, 
and  concerninge  the  landes  and  hereditaments  hereinafter  men- 
tioned, to  be  graunted  and  the  plantation  thereof,  and  the  govern- 
ment of  the  people  there.  .  .  . 

And  further,  wee  doe,  of  our  especiall  grace,  certayne  knowl- 
edge, and  meere  motion,  give  and  graunt  unto  the  sayd  Governour 
and  Company  .  .  .  and  their  successours  that  the  Governour, 
or  in  his  absence,  or  by  his  permission,  the  Deputy  Governour 
of  the  sayd  Company,  for  the  tyme  being,  the  Assistants,  and  such 
of  the  ffreemen  of  the  sayd  Company  as  shall  bee  soe  as  aforesayd 
elected  or  deputed,  or  soe  many  of  them  as  shall  bee  present  att 
such  meetinge  or  assemblye  as  afforesayde,  shall  bee  called  the 
Generall  Assemblye. 

And  that  they  or  the  greatest  parte  of  them  present,  whereof 
the  Governour  or  Deputy  Governour,  and  sixe  of  the  Assistants, 
at  least  to  be  seven,  shall  have  and  have,  and  hereby  given  and 
graunted  unto  them,  ffull  power  authority,  ffrom  tyme  to  tyme, 
and  at  all  tymes  hereafter,  to  appoynt,  alter,  and  change  such 
dayes,  tymes  and  places  of  meetinge  and  Generall  Assemblyee, 
as  theye  shall  think  ffit;  and  to  choose,  nominate,  and  appoynt, 
such  and  soe  manye  other  persons  as  they  shall  thinke  fitt,  and 
shall  be  wilhng  to  accept  the  same,  to  bee  ffree  of  the  sayd 
Company  and  body  politique  and  them  into  the  same  to  admitt ; 
and  to  elect  and  constitute  such  offices  and  officers,  and  to  graunt 
such  needful  commissions  as  they  shall  thinke  ffitt  and  requisite, 
ffor  the  ordering,  managing,  and  dispatching  of  the  aifaires  of 
the  sayd  Governour  and  Company,  and  their  successours;  and 
from  tyme  to  tyme,  to  make,  ordeyne,  constitute  or  repeal  such 
lawes,  statutes,  orders  and  ordinances,  flformes  and  ceremonies  of 


Colonial   Origins  of  American  Institutions         9 

government  and  magistracye,  as  to  them  shall  seeme  meete  for  the 
good  and  wellfare  of  the  sayd  Company,  and  ffor  the  government 
and  ordering  of  the  landes  and  hereditaments  hereinafter  mentioned 
to  be  graunted,  and  of  the  people  that  doe,  or  att  any  tyme  here- 
after shall,  inhabitt  or  bee  within  the  same;  soe  as  such  lawes, 
ordinances,  and  constitutiones,  soe  made,  bee  not  contrary  and 
repugnant  unto,  butt  as  neare  as  may  bee,  agreeable  to  the  lawes 
of  this  our  realme  of  England,  considering  the  nature  and  con- 
stitutione  of  the  place  and  people  there. 

3.    The  Proprietary  Colony 

The  government  of  a  proprietary  colony  was  based,  in  the 
first  instance,  upon  letters  patent  issued  to  some  person  by  the 
king  granting  the  possession  of  a  certain  tract  of  land  and  con- 
ferring extensive  power  in  making  laws  and  governing  the  in- 
habitants. On  such  conditions,  Pennsylvania  was  granted  to 
WiUiam  Penn  by  Charles  II,  but  in  1701  Penn  conferred  upon  the 
inhabitants  of  his  province,  with  the  assent  of  a  general  assembly, 
a  charter  estabhshing  certain  civil  rights  and  a  frame  of  govern- 
ment.    This  system  remained  in  force  until  the  Revolution. 

William  Penn,  Proprietary  and  Governor  of  the  Province  of 
Pensilvania  and  Territories  thereunto  belonging.  To  all  to  whom 
these  Presents  shall  come,  sendeth  Greeting.  Whereas  King 
Charles  the  Second,  by  His  Letters  Patents,  under  the  Great 
Seal  of  England,  bearing  Date  the  Fourth  Day  of  March,  in  the 
Year  One  Thousand  Six  Hundred  and  Eighty-one,  was  graciously 
pleased  to  give,  and  grant  unto  me,  and  my  Heirs  and  Assigns  for- 
ever, this  Province  of  Pensilvania,  with  divers  great  Powers  and 
Jurisdictions  for  the  well  Government  thereof.  .  .  .  Know  Ye 
Therefore,  That  for  the  further  Well-being  and  good  Government 
of  the  said  Province  and  Territories;  and  in  Pursuance  of  the 
Rights  and  Powers  before  mentioned,  I  the  said  William  Penn 
do  declare,  grant  and  confirm  unto  all  the  Freemen,  Planters, 
and  Adventurers,  and  other  Inhabitants  of  this  Province  and  Ter- 
ritories,   these    following    Liberties,   Franchises,  and    Privileges, 


lo  American   Government  and   Politics 

so  far  as  within  me  lieth,  to  be  held,  enjoyed,  and  kept  .  .  . 
forever. 

First.  Because  no  People  can  be  truly  happy,  though  under 
the  greatest  Enjoyment  of  Civil  Liberties,  if  abridged  of  the  Free- 
dom of  their  Consciences,  as  to  their  Religious  Profession  and 
Worship:  And  Almighty  God  being  the  only  Lord  of  Conscience, 
Father  of  Lights  and  Spirits;  and  the  Author  as  well  as  Object 
of  all  divine  knowledge,  Faith,  and  Worship,  who  only  doth  en- 
lighten the  Minds,  and  persuade  and  convince  the  Understandings 
of  People,  I  do  hereby  grant  and  declare.  That  no  Person  or  Per- 
sons, inhabiting  this  Province  or  Territories,  who  shall  confess 
and  acknowledge  One  almighty  God,  the  Creator,  Upholder  and 
Ruler  of  the  World;  and  profess  him  or  themselves  obliged  to  Hve 
quietly  under  the  Civil  Government,  shall  be  in  any  case  molested 
or  prejudiced,  in  his  or  their  Person  or  Estate,  because  of  his  or 
their  conscientious  Persuasion  or  Practice,  nor  be  compelled  to 
frequent  or  maintain  any  religious  Worship,  Place  or  Ministry, 
contrary  to  his  or  their  Mind,  or  do  or  suffer  any  other  Act  or 
Thing,  contrary  to  their  religious  Persuasion.  And  that  all  Per- 
sons who  also  profess  to  believe  in  Jesus  Christ,  the  Saviour  of  the 
World,  shall  be  capable  (notwithstanding  their  other  Persuasions 
and  Practices  in  Point  of  Conscience  and  Religion)  to  serve  this 
government  in  any  Capacity  both  legislatively  and  executively, 
he  or  they  solemnly  promising,  when  lawfully  required.  Allegiance 
to  the  King  as  Sovereign  and  Fidelity  to  the  Proprietary  and  Gov- 
ernor and  taking  the  Attests  as  now  established  by  the  Law.  .  .  . 

IL  For  the  well  governing  of  this  Province  and  Territories, 
there  shall  be  an  Assembly  yearly  chosen,  by  the  Freemen  thereof, 
to  consist  of  four  Persons  out  of  each  County,  of  most  Note  for 
Virtue,  Wisdom,  and  Abihty,  (or  of  a  greater  number  at  any  Time, 
as  the  Governor  and  Assembly  shall  agree)  upon  the  First  Day 
of  October  forever.  .  .  .  Which  Assembly  shall  have  Power  to 
chuse  a  Speaker  and  other  their  Officers;  and  shall  be  Judges  of 
the  Qualifications  and  Elections  of  their  own  Members ;  sit  upon 
their  own  Adjournments;    appoint   Committees;    prepare  Bills 


Colonial  Origins  of  American  Institutions       ii 

in  order  to  pass  into  Laws;  impeach  Criminals,  and  redress 
Grievances ;  and  shall  have  all  other  Powers  and  Privileges  of  an 
Assembly,  according  to  the  Rights  of  the  free-born  Subjects  of 
England,  and  as  is  usual  in  any  of  the  King's  Plantations  in 
America.  .  .  . 

III.     That  the  Freemen  in  each  respective  County  at  the  Time   The 

selection 

and  Place  of  Meeting  for  Electing  their  Representatives  to  serve  ^f  lo^ai 
in  Assembly,  may  as  often  as  there  shall  be  Occasion,  chuse  a  officers, 
double  number  of  Persons  to  present  to  the  Governor  for  Sheriffs 
and  Coroners  to  serve  for  three  Years,  if  so  long  they  behave  them- 
selves well;  out  of  which  respective  Elections  and  Presentments, 
the  Governor  shall  nominate  and  commissionate  one  for  each  of 
the  said  Offices.  .  .  . 

4.   A  Boston  Town  Meeting 

While  the  colonies  presented  many  points  of  similarity  in  the 
organization  of  their  central  governments,  there  was  great  diver- 
sity in  the  methods  of  conducting  local  affairs.  In  New  England, 
the  conditions  of  the  early  settlement,  the  topography  of  the 
country,  and  the  prevailing  modes  of  agriculture  led  to  the  forma- 
tion of  the  compact  town  as  the  unit  of  local  government ;  and  the 
spirit  of  ecjuality  among  the  freeholders  brought  about  a  popular 
control  of  local  affairs  through  the  historic  "town  meeting." 
The  extract  from  the  minutes  of  a  Boston  town  meeting  given  be- 
low illustrates  the  methods  and  spirit  of  the  system. 

At  a  Meeting  of  the  Freeholders  and  other  Inhabitants  of  the 
Town  of  Boston  legally  qualify'd  and  Warned  in  the  Public  Town 
Meeting  Assembled  at  Fanueil-Hall  on  Monday  the  13"^  day  of 
March  a.d.  1758. 

Prayer  was  made  by  the  Rev**.  M"".  Sam\  Checkley  S'. 

The  Warrant  for  calling  the  Meeting.     Read. 

Sundray  Laws.     Read. 

John  Phillips  Esq"",  was  chose  Moderator  of  this  Meeting.  .  .  • 

Ezekiel  Goldthwait  was  Chose  Town  Clerk  for  the  Year  en- 
suing. .  .  . 


12 


American  Government  and  Politics 


Sundry  Petitions.     Read. 

The  Town  proceeded  to  the  Choice  of  seven  Selectmen  &  the 
Votes  brought  in  &  Sorted,  it  appeared  that, 
Samuel  Grant  Esq"". 
Mr.  Thomas  Hill 
[and   five   others] 
were  unanimously  chose.     [Here  follow  elections  of  Overseers  of 
the  Poor,  Firewards,  Town  Treasurer,  Clerks  of  the  Market,  Fence 
Viewers,  Hogreeves,  Scavengers,  and  other  officers.^] 

.  .  .  Tuesday  Morning  ten  o'clock  the  Town  Mett  according 
to  Adjournment.  .  .  .  The  Town  took  into  Consideration  the 
Method  of  raising  ISIonies  for  the  payment  of  Schoolmasters,  for 
the  Relief  of  the  Poor,  and  the  defreying  other  necessary  Charges, 
and  after  a  very  long  debate  thereon.  Voted  that  the  Sum  of 
Money  that  shall  be  agreed  upon  to  be  raised  at  this  Meeting  for 
the  purposes  aforesaid,  shall,  as  soon  as  may  be,  be  apportion'd 
by  the  Assessors,  and  the  Collectors  of  Taxes  shall  upon  receiving 
said  Assessments  from  them,  forthwith  Collect  and  pay  the  same 
into  the  Town  Treasury,  &  that  no  more  than  six  pense  on  the 
Pound  be  allow'd  for  Collecting  of  Taxes.  Voted  that  the  Sum 
of  Six  Thousand  Pounds  Lawful  Money  be  rais'd  by  a  Tax  upon 
Polls  and  Estates  within  this  Town  for  Relief  of  the  Poor,  and 
defreying  other  necessary  Charges  arising  within  the  Town  the 
Year  ensuing. 

.  .  .  Voted  that  tlie  Town  proceed  to  the  Choice  of  four  Col- 
lectors of  Taxes,  the  Vote  2)assed  this  Meeting  for  choosing  only 

'  It  will  be  noted  that  according  to  the  formal  law  the  municipal  officers  of  Boston 
were  to  be  elected  in  open  town  meeting.  The  following  extract  from  John  Adams's 
Journal  is  an  interesting  illustration  of  the  political  practice:  "This  day  learned 
that  the  Caucus  club  meets  at  certain  times  in  the  garret  of  Tom  Dawes,  the 
adjutant  of  the  Boston  regiment.  He  has  a  large  house  and  he  has  a  movable 
partition  in  the  garret  which  he  takes  down  and  the  whole  club  meets  in  one  room. 
There  they  smoke  tobacco  until  you  cannot  sec  from  one  end  of  the  garret  to  the 
other.  There  they  drink  flip,  I  suppose,  and  the}'  choose  a  moderator  who  puts 
questions  to  the  vote  regularly;  and  selectmen,  assessors,  collectors,  lire- wards, 
and  representatives  arc  regularly  chosen  before  they  are  chosen  in  the  town."  — 
John  Adams,  Works  (1S50),  \'ol.  II,  p.  144. 


Colonial  Origins  of  American   Institutions       13 

two  notwithstanding,  accordingly  the  Votes  were  brought  in,  and 
upon  Sorting  them  it  appeared  that. 

Mess".  John  Ruddock 

James   Scutt 

Jonathan  Payson  & 

Samuel  Adams, 
were  chose  Collectors  of  Taxes  for  the  Year  ensuing.  .  .  . 

Petition  of  sundry  Inhabitants  praying  that  the  Town  would  pave  Petitions 
the  lower  end  of  Prince  Street  leading  to  Charlestown  Ferry,  for 
reasons  therein  mentioned,  was  Read,  and  after  a  short  debate, 
Voted  that  said  Petition  be  dismiss'd.  The  Petition  of  the  Watch- 
men of  the  Town  praying  for  an  Addition  to  their  Wages,  for 
reasons  therein  mentioned  was  Read,  Voted  that  said  Petition 
be  dismiss'd.  .  .  . 

5.    Local  Government  in  Virginia 

In  the  South,  on  the  other  hand,  the  physiographical  condi- 
tions favored  the  formation  of  scattered  settlements  and  the  es- 
tablishment of  the  county  as  the  principal  unit  of  local  government. 
In  the  county,  the  justices  of  the  peace,  after  the  fashion  of  Eng- 
land, conducted  the  administrative  as  well  as  the  judicial  business. 
Adopting  the  more  highly  centralized  system  of  the  mother  coun- 
try, where  the  justices  were  appointed  by  the  crown,  the  Virginia 
legislature  vested  the  appointment  in  the  governor  of  the  colony. 
Some  of  the  features  of  Southern  local  government  are  well 
described  in  the  lengthy  statutes  from  which  the  extracts  given 
here  are  taken :  — 


For  the  better  and  more  expeditious  determination  of  contro-   Justices  of 
versies.  Be  it  enacted  by  the  Lieutenant-Governor,  Council,  and   appoiiiited 
Burgesses,  of   this  present  General  Assembly,  and  it  is  hereby   by  the 
enacted  by  the  authority  of  the  same.  That  in  every  county  of  this  governor, 
dominion,  a  monthly  court  shall  be  held,  by  the  justices  thereof, 
at  the  several  respective  places  already  assigned  for  that  purpose, 
or  at  such  place  or  places  as  shall  be  hereafter  lawfully  appointed, 
upon  the   days   hereinafter  limited  for  each  county  respectively, 

f 


14 


American   Government  and   Politics 


and  at  no  other  time  or  place :  Which  courts  shall  be  called  county 
courts,  and  consist  of  eight  or  more  justices  of  the  peace,  com- 
missionated  by  the  governor  or  commander  in  chief  of  this  do- 
minion, for  the  time  being:  Any  four  of  them,  one  being  of  the 
quorum,  shall  be  sufficient  to  hear  and  determine  all  causes  de- 
pending in  the  said  county  courts. 

And  be  it  further  enacted,  by  the  authority  aforesaid.  That 
from  time  to  time,  for  ever  hereafter,  the  court  of  every  county 
of  this  dominion,  shall  cause  to  be  erected,  and  kept  in  good 
repair,  or  where  the  same  shall  be  already  built,  shall  maintain 
and  keep  in  good  repair,  within  each  respective  county,  and  at 
the  charge  of  such  county,  one  good  and  convenient  courthouse, 
of  stone,  brick,  or  timber,  and  one  common  gaol,  and  county 
prison,  well  secured  with  iron  bars,  bolts,  and  locks,  and  also, 
one  pillory,  whipping-post,  and  stocks;  and  where  land  shall  not 
be  already  provided  and  appropriated  for  that  purpose,  such  court 
may  purchase  two  acres,  whereon  to  erect  the  said  public  build- 
ings, for  the  use  of  their  county,  and  for  no  other  use  what- 
soever. 

Be  it  therefore  enacted,  by  the  Lieutenant  Governor,  Council, 
and  Burgesses  of  this  present  General  Assembly,  and  it  is  hereby 
enacted,  by  the  authority  of  the  same.  That  the  justices  of  every 
county  court  in  this  colony,  be,  and  are  hereby  authorized  and 
impowered,  to  contract  and  agree  for  the  building  of  bridges, 
making  causeways,  and  other  necessary  charges,  in  such  manner 
as  to  them  shall  seem  most  proper;  and  to  levy  the  expence  thereof, 
at  such  times,  and  in  such  proportions,  as  they  shall  think  most 
for  the  ease  and  benefit  of  the  people.  And  all  and  every  contracts, 
agreements,  and  orders,  by  them  made,  from  time  to  time,  con- 
cerning the  same,  shall  be  good,  binding,  and  available,  against 
themselves,  and  their  successors,  and  all  other  persons  whatsoever. 


6.   Political  Theory  before  the  Revolution  * 
Absence 

of  political  Political  theorizing  in  America  before  the  breach  with  Great 

theorizing.       Britain  Stands  in  marked  contrast  to  the  intellectual  ferment  which 


Colonial   Origins  of  American  Institutions       15 


preceded  the  French  Revolution.  The  reason  for  this  is  not  far 
to  seek;  the  American  Revolution  was  not  an  internal  social  re- 
construction, but  the  abolition  of  external  coercion.  There  was 
accordingly  no  discussion  of  the  rights  of  man,  no  leveling  propa- 
ganda, no  discontent  with  the  general  features  of  the  prevailing 
system  of  government.  The  following  extract  from  a  sermon 
preached  in  1765  before  the  Massachusetts  Governor,  Council, 
and  House  of  Representatives,  on  the  occasion  of  the  election  of 
the  Council,  doubtless  represents  the  attitude  toward  the  govern- 
ment which  existed  quite  generally  throughout  the  colonies. 

In  Great  Britain  there  is  a  happy  mixture  of  monarchy,  aris- 
tocracy, and  democracy.  This  is  perhaps  the  most  perfect  form 
of  civil  government.  It  is  the  glory  of  Britons,  and  the  envy  of  for- 
eigners. How  happy  is  Great  Britain  in  a  Prince  who  accounts 
it  his  glory  to  reign  over  a  free  people,  and  who,  we  trust,  will 
always  make  the  laws  of  the  land  the  rule  of  his  administration  ! 
How  still  more  happy,  in  a  constitution  that  scarce  admits  of  tyr- 
anny, unless  the  people  themselves  become  corrupt  and  venal ;  and 
when  that  is  the  case,  nothing  but  Omnipotence  can  save  them. 

It  is  the  safety  of  the  British  nation  that  the  monarchy  is  heredi- 
tary, as  that  right  is  now  understood.  It  is  a  favor  of  heaven 
that  our  lawful  Sovereign  is  possessed  of  virtues  which  ensure  him 
the  love  and  obedience  of  his  subjects.  "Because  the  Lord  hath 
loved  his  people,  he  hath  made  thee  a  king  over  them."  May 
that  kind  Providence  which  has  so  often  appeared  for  our  nation, 
still  watch  over  it  for  good;  disappoint  every  attempt  to  subvert 
their  liberties,  and  preserve  them  from  those  internal  vices  and 
corruptions  which  they  have  more  reason  to  fear  than  any  foreign 
enemy  or  open  violence  ! 

The  form  of  government  in  this  Province,  is  a  model  of  the 
British  constitution.  Our  commander  in  chief,  who  represents 
the  king  is  not  elected  by  ourselves.  We  do  not  complain  of  this 
as  an  infringement  of  our  liberties;  it  rather  frees  us  from  many 
inconveniences  which  would  attend  frequent  popular  elections. 
Especially  may  we  esteem  it  a  privilege,  while  we  have  a  Gentle- 
man at  our  head,  who  so  well  understands  our  civil  constitution, 


British 

government 

perhaps 

the  most 

perfect 

form. 


Hereditary 
monarchy 
the  safety 
of  Great 
Britain. 


Govern- 
ment of 
Massachu- 
setts 
modeled 
after  that  of 
England. 


i6 


American   Government  and  Politics 


The  popu- 
lar branch 
of  the 
government. 


and  who,  we  persuade  ourselves,  sincerely  aims  at  the  happiness 
of  the  people  he  is  appointed  to  govern.  May  his  Excellency's 
services  for  the  public  always  find  acceptance  with  an  obliged 
and  grateful  people;  and  may  he  have  the  approbation  of  his 
great  Lord  when  he  gives  an  account  of  the  talents  committed  to 
him! 

The  other  branches  of  our  legislature  are  chose  by  ourselves. 
It  refreshes  our  hearts  to  see  the  return  of  this  anniversary  and 
we  hope  fills  them  with  thankfulness  to  God.  The  presence  of 
our  General  Assembly  and  the  business  of  this  day,  put  us  in  mind 
of  the  liberties  we  enjoy,  while  more  than  nine-tenths  of  mankind 
are  in  the  most  abject  slavery,  and  multitudes  of  them,  to  the 
basest  and  worst  of  the  human  race.  We  conclude  it  is  from  the 
experience  their  constituents  have  had  of  their  wisdom  and  integ- 
rity, that  so  many  are  returned  to  serve  in  the  present  assembly 
who  have  formerly  had  a  seat  there.  We  cannot  think  the  people 
are  yet  so  corrupt  as  generally  to  be  influenced  in  their  elections 
by  other  considerations.  We  trust  that  they,  whom  they  have 
honored  with  this  mark  of  their  confidence,  will  have  a  sacred 
regard  to  their  interest  and  will  not  suffer  any  sinister  views  to 
bias  or  govern  them. 


CHAPTER   II 

UNION,   INDEPENDENCE,    AND    SELF-GOVERNMENT 

It  is  only  by  a  study  of  the  process  through  which  the  thirteen   How  the 
colonies   became   thirteen  independent  confederated  states   that   yevolution- 
one  can  hope  to  understand  the  general  features  of  our  federal   possession 
system.     The  first  fact  to  note  is  that  the  American  Revolution   of  the  gov- 
was  primarily  the  work  of  an  active  and  determined  group  of  men   emment. 
in  each  community  who  organized  themselves  first  into  committees 
of  correspondence  for  stirring  up  and  sustaining  the  fervor  of 
revolt,  and  then,  as  the  quarrel  grew  apace,  seized  the  institutions 
of  government  which  they  found  at  hand,  or  constructed  new  in- 
struments of  their  own.    Boston  led  the  way  in  the  establishment 
of  committees  of  correspondence  by  a  resolution  setting  up  a  com- 
mittee for  that  city,  and  this  example  was  speedily  followed  by 
other  towns.     The  colonial  assemblies  then  began,  in  a  some- 
what irregular  fashion,  to  appoint  committees  to  represent  the 
colonies  as  political  units,  and  thus  the  organized  basis  of  the 
new  nation  was  laid. 

7.  The  Boston  Committee  of  Correspondence,  1772 

Resolved  as  the  opinion  of  the  Inhabitants  of  this  Town  that 
they  have  ever  had,  and  ought  to  have  a  right  to  Petition  the 
King  or  his  Representatives  for  the  Redress  of  such  Grievances 
as  they  feel  or  for  preventing  of  such  as  they  have  reason  to  ap- 
prehend, and  to  communicate  their  Sentiment  to  other  Towns. 

It  was  then  moved  by  Mr.  Samuel  Adams,  That  a  Committee  of   The  work 
Correspondence  be  appointed  to  consist  of  twenty-one  Persons  —   rcsnonden'c€ 
to  state  the  Rights  of  the  Colonists  and  of  this  Province  in  par-    committee. 
ticular,  as  Men,  as  Christians,  and  as  Subjects;   to  communicate 
and  publish  the  same  to  the  several  Towns  in  this  Province  and 
to  the  World  as  the  sense  of  this  Town,  with  the  Infringements 
c  17 


1 8  American   Government  and  Politics 

and  Violations  thereof  that  have  been,  or  from  time  to  time  may 
be  made  —  Also  requesting  of  each  Town  a  free  communication 
of  their  Sentiments  on  this  Subject  —  And  the  Question  being 
accordingly  piit  —  Passed  in  the  Affirmative.     Nem.  Cont.  .  .  . 

8.   Massachusetts  Calls  the  First  Continental  Congress 

The  committees  of  correspondence  were  not  slow  in  realizing 
the  necessity  of  a  strong  union  among  the  revolutionary  forces  of 
all  the  colonies  in  order  to  resist  the  authority  of  Great  Britain, 
and  in  1774  the  Massachusetts  House  of  Representatives,  defying 
the  governor's  messenger  who  was  knocking  at  the  door  to  an- 
nounce a  dissolution,  passed  a  resolution  calhng  a  congress  of 
colonial  representatives  to  meet  at  Philadelphia  on  September  i. 


In  the  House  of  Representatives,  June  17,  1774. 

This  House  having  duly  considered,  and  being  deeply  affected 
with  the  unhappy  differences  which  have  long  subsisted,  and  are 
increasing,  between  Great  Britain  and  the  American  Colonies,  do 
resolve,  that  a  meeting  of  Committees,  from  the  several  Colonies 
on  this  Continent  is  highly  expedient  and  necessary,  to  consult 
upon  the  present  state  of  the  Colonies,  and  the  miseries,  to  which 
they  are,  and  must  be  reduced,  by  the  operation  of  certain  Acts  of 
Parhament  respecting  America;  and  to  deliberate  and  determine 
upon  wise  and  proper  measures  to  be  by  them  recommended  to  all 
the  Colonies,  for  the  recovery  and  establishment  of  their  just 
rights  and  liberties,  civil  and  religious,  and  the  restoration  of  union 
and  harmony  between  Great  Britain  and  the  Colonies,  most 
ardently  desired  by  all  good  men. 

Therefore,  resolved,  That  the  Honourable  James  Bowdoin,  Esq., 
the  Honourable  Thomas  Gushing,  Esq.,  Mr.  Samuel  Adams, 
John  Adams,  and  Robert  Treat  Paine,  Esquires,  be  and  they  are 
hereby  appointed  a  Committee  on  the  part  of  this  province,  for 
the  purposes  aforesaid,  any  three  of  whom  to  be  a  quorum,  to 
meet  such  Committees  or  Delegations  from  the  other  Colonies,, 
as  have  been  or  may  be  appointed,  either  by  their  respective 


Union,  Independence,  and  Self-Go vernment     19 

Houses  of  Burgesses  or  Representatives,  or  by  Convention,  or  by 
the  Committees  of  Correspondence  appointed  by  the  respective 
Houses  of  Assembly,  to  meet  in  the  City  of  Philadelphia,  or  any 
other  place  that  shall  be  adjudged  most  suitable  by  the  Committee 
on  the  first  day  of  September  next;  and  that  the  Speaker  of  the 
House  be  directed,  in  a  letter  to  the  Speakers  of  the  Houses  of 
Burgesses  or  Representatives  in  the  several  Colonies,  to  inform 
them  of  the  substance  of  these  resolves. 

9.   Appointment   of  the  South   Carolina   Delegates   to   the   First 
Continental  Congress 

The  other  colonies  met  the  call  of  Massachusetts  by  appointing  The  call 
delegates   to   the   general   conference,    and   thus    originated    the   ^^  Massa- 
union  out  of  which  the  present  American  nation  has  grown.     No   ^  "setts  is 

answered. 

uniform  method  was  followed  by  the  discontented  leaders  in  se- 
lecting their  delegates,  but  the  spirit  of  the  movement  for  union  is 
revealed  in  the  document  recording  the  action  of  South  Carolina 
in  choosing  her  representatives.  It  v^ll  be  noted  that  it  was 
merely  a  ratification  of  the  steps  taken  by  an  irregular  general 
meeting  of  the  inhabitants  held  a  few  weeks  earlier. 

In  the  commons,  house  of  Assembly,  Tuesday,  the  2d  day  of  The 
August  1774.     Colonel  Power  acquainted  the  house,  that  during  secure  T 
the  recess  of  this  house,  viz:    on  the  6th,  7th   &  8th  days  of  July  redress  of 
last  at  a  general  meeting  of  the  inhabitants  of  this  colony,  they  grievances, 
having  under  consideration  the  acts  of  parliament  lately  passed 
with  regard  to  the  port  of  Boston  and  Colony  of  Massachusetts 
Bay  as  well  as  other  American  grievances,  had  nominated  and  ap- 
pointed   the   hon"*.  Henry  Middleton,  John    Rutledge,  Thomas 
Lynch,  Christopher  Gadsden,  &  Edward  Rutledge,  Esq""*,  depu- 
ties on  the  part  and  behalf  of  this  Colony,  to  meet  the  deputies 
of  the  other  Colonies  of  North  America,  in  general  Congress,  the 
first  Monday  in  September  next  at  Philadelphia,  or  at  any  other 
time  or  place  that  may  be  generally  agreed  on,  there  to  consider 
the  acts  lately  passed,  and  bills  depending  in  parliament  with 
regard  to  the  port  of  Boston  and  Colony  of  Massachusetts-Bay, 


20  American   Government  and   Politics 

which  acts  &  bills  in  the  precedent  and  consequences  affect  the 
whole  Continent  of  America  —  also  the  grievances  under  which 
America  labours  by  reason  of  the  several  acts  of  parliament  that 
impose  taxes  or  duties  for  raising  a  revenue,  and  lay  unnecessary 
restraints  and  burdens  on  Trade;  and  of  the  statutes,  parlia- 
mentary acts,  and  royal  instructions,  which  make  an  invidious 
distinction  between  his  majesty's  subjects  in  Great  Britain  and 
America,  with  full  power  and  authority  to  concert,  agree  to,  and 
effectually  prosecute  such  legal  measures,  as  in  the  opinion  of  the 
said  deputies,  and  of  the  deputies  so  to  be  assembled,  shall  be 
most  likely  to  obtain  a  repeal  of  the  said  acts,  and  a  redress  of 
those  grievances :  and  thereupon  moved  that  this  house  do  resolve 
to  recognize,  ratify,  and  confirm  said  appointment  of  the  deputies 
for  the  purposes  aforesaid. 

Resolved,  N.  C.  D.  That  this  house  do  recognize,  ratify,  and 
confirm  the  appointment  of  the  said  deputies  for  the  purposes 
mentioned  in  the  said  motion. 

Attested, 

Thomas  Farr, 

Jun^  Clerk. 


lo.    The  Declaration  of  Independence 

The  first  Continental  Congress  failed  to  achieve  anything  by 
negotiations  with  Great  Britain.  A  second  was  called  in  1775, 
and  after  what  purported  to  be  attempts  at  reconciliation  with  the 
mother  country,  it  declared  the  thirteen  United  Colonies  to  be 
forever  independent.  The  famous  document  announcing  the 
momentous  decision  of  the  Congress  has  the  highest  historical 
and  poHtical  value.  In  addition  to  setting  forth  the  colonists' 
views  of  their  grievances,  it  enunciated  significant  democratic 
doctrines  entertained  by  Jefferson  and  a  few  of  the  other  radical 
leaders.  Though  these  doctrines  were  not  accepted  by  the  more 
conservative  statesmen,  like  Washington,  Hamilton,  and  Gouver- 
neur  Morris,  they  were  destined  to  give  a  new  direction  to  political 
theorizing  in  America. 


Union,   Independence,  and  Self-Government     21 


In  Congress,  July  4,  1776. 

The  unanimous  Declaration  of  the  thirteen  united  states 

OF  America 

When  in  the  Course  of  human  events,  it  becomes  necessary  for 
one  people  to  dissolve  the  political  bands  which  have  connected 
them  v^^ith  another,  and  to  assume  among  the  Powers  of  the  earth, 
the  separate  and  equal  station  to  which  the  Laws  of  Nature  and 
of  Nature's  God  entitle  them,  a  decent  respect  to  the  opinions  of 
mankind  requires  that  they  should  declare  the  causes  which  impel 
them  to  the  separation. 
f^  ^We  hold  these  truths  to  be  self-evident,  that  all  men  are  created  The 
equal,  that  they  are  endowed  by  their  Creator  with  certain  un-  j^j^j^ 
alienable  Rights,  that  among  these  are  Life,  Liberty  and  the  pur- 
suit of  Happiness.  That  to  secure  these  rights.  Governments  are 
instituted  among  Men,  deriving  their  just  powers  from  the  consent 
of  the  governed,  That  whenever  any  Form  of  Government  becomes 
destructive  of  these  ends,  it  is  the  Right  of  the  People  to  alter  or 
to  abolish  it,  and  to  institute  new  Government,  laying  its  foundation 
■  on  such  principles  and  organizing  its  powers  in  such  form,  as  to 
I  Jthem  shall  seem  most  likely  to  effect  their  Safety  and  Happiness. 
Prudence,  indeed,  will  dictate  that  Governments  long  established 
should  not  be  changed  for  light  and  transient  causes ;  and  accord- 
ingly all  experience  hath  shown,  that  mankind  are  more  disposed 
to  suffer,  while  evils  are  sufferable,  than  to  right  themselves  by 
abolishing  the  forms  to  which  they  are  accustomed.  But  when  a 
long  train  of  abuses  and  usurpations,  pursuing  invariably  the  same 
Object  evinces  a  design  to  reduce  them  under  absolute  Despotism, 
it  is  their  right,  it  is  their  duty,  to  throw  off  such  Government, 
and  to  provide  new  Guards  for  their  future  security.  —  Such  has 
been  the  patient  sufferance  of  these  Colonics ;  and  such  is  now  the 
necessity  which  constrains  them  to  alter  their  former  Systems  of 
Government.  The  history  of  the  present  King  of  Great  Britain 
is  a  history  of  repeated  injuries  and  usurpations,  all  having  in 


22 


American   Government  and  Politics 


direct  object  the  establishment  of  an  absolute  Tyranny  over  these 
States.     To  prove  this,  let  Facts  be  submitted  to  a  candid  world. 

He  has  refused  his  assent  to  Laws,  the  most  wholesome  and 
necessary  for  the  public  good. 

He  has  forbidden  his  Governors  to  pass  Laws  of  immediate  and 
pressing  importance,  unless  suspended  in  their  operation  till  his 
assent  should  be  obtained;  and  when  so  suspended,  he  has  utterly 
neglected  to  attend  to  them. 

He  has  refused  to  pass  other  Laws  for  the  accommodation  of 
large  districts  of  people,  unless  those  people  would  relinquish  the 
right  of  representation  in  the  legislature  —  a  right  inestimable  to 
them,  and  formidable  to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  unusual,  un- 
comfortable, and  distant  from  the  depository  of  their  public 
records,  for  the  sole  purpose  of  fatiguing  them  into  compliance 
with  his  measures. 

He  has  dissolved  representative  houses  repeatedly,  for  oppos- 
ing, with  manly  firmness,  his  invasions  on  the  rights  of  the  people. 

He  has  refused,  for  a  long  time  after  such  dissolutions,  to  cause 
others  to  be  elected,  whereby  the  legislative  powers,  incapable  of 
annihilation,  have  returned  to  the  people  at  large  for  their  exer- 
cise; the  State  remaining,  in  the  mean  time,  exposed  to  all  the 
dangers  of  invasions  from  without,  and  convulsions  within. 

He  has  endeavored  to  prevent  the  population  of  these  States ;  for 
that  purpose  obstructing  the  laws  for  the  naturalization  of  for- 
eigners; refusing  to  pass  others  to  encourage  their  migration 
hither,  and  raising  the  conditions  of  new  appropriations  of  lands. 

He  has  obstructed  the  administration  of  justice,  by  refusing  his 
assent  to  laws  for  establishing  judiciary  powers. 

He  has  made  judges  dependent  on  his  will  alone  for  the  tenure 
of  their  offices,  and  the  amount  and  payment  of  their  salaries. 

He  has  erected  a  multitude  of  hew  offices,  and  sent  hither 
swarms  of  officers  to  harass  our  people  and  eat  out  their  substance. 

He  has  kept  among  us  in  times  of  peace,  standing  armies,  with- 
out the  consent  of  our  Legislatures. 


Union,   Independence,  and  Self-Government     23 

He  has  afifected  to  render  the  military  independent  of,  and 
superior  to,  the  civil  power. 

He  has  combined  with  others  to  subject  us  to  a  jurisdiction  for- 
eign to  our  constitution,  and  unacknowledged  by  our  laws;  giv- 
ing his  assent  to  their  acts  of  pretended  legislation: 

For  quartering  large  bodies  of  armed  troops  among  us ; 

For  protecting  them,  by  a  mock  trial,  from  punishment  for  any 
murders  which  they  should  commit  on  the  inhabitants  of  these 
States ; 

For  cutting  off  our  trade  with  all  parts  of  the  world; 

For  imposing  taxes  on  us  without  our  consent; 

For  depriving  us,  in  many  cases,  of  the  benefits  of  trial  by  jury; 

For  transporting  us  beyond  seas,  to  be  tried  for  pretended 
offenses ; 

For  abolishing  the  free  system  of  English  laws  in  a  neighbor- 
ing province,  establishing  therein  an  arbitrary  government,  and 
enlarging  its  boundaries,  so  as  to  render  it  at  once  an  example  and 
fit  instrument  for  introducing  the  same  absolute  rule  into  these 
colonies ; 

For  taking  away  our  charters,  abolishing  our  most  valu- 
able laws,  and  altering,  fundamentally,  the  forms  of  our 
governments ; 

For  suspending  our  own  Legislatures,  and  declaring  themselves 
invested  with  power  to  legislate  for  us  in  all  cases  whatsoever. 

He  has  abdicated  government  here,  by  declaring  us  out  of  his 
protection,  and  waging  war  against  us. 

He  has  plundered  our  seas,  ravaged  our   coasts,  burned  our       , 

towns,  and  destroyed  the  lives  of  our  people.  >-v.'«-|«j'--'*'~^ 

He  is  at  this  time  transporting  large  armies  of  foreign  merce- 
naries to  complete  the  works  of  death,  desolation  and  tyranny, 
already  begun  with  circumstances  of  cruelty  and  perfidy  scarcely 
paralleled  in  the  most  barbarous  ages,  and  totally  unworthy  the 
head  of  a  civilized  nation. 

He  has  constrained  our  fellow-citizens,  taken  captive  on  the 
high  seas,  to  bear  arms  against  their  country,  to  become  the  exe- 


24 


American   Government  and   Politics 


cutioners  of  their  friends  and  brethren,  or  to  fall  themselves  by 
their  hands. 

He  has  excited  domestic  insurrection  among  us,  and  has  en- 
deavored to  bring  on  the  inhabitants  of  our  frontiers  the  merciless 
Indian  savages,  whose  known  rule  of  warfare  is  an  undistin- 
guished destruction  of  all  ages,  sexes,  and  conditions. 

In  every  stage  of  these  oppressions  we  have  petitioned  for  re- 
dress in  the  most  humble  terms;  our  repeated  petitions  have  been 
answered  only  by  repeated  injury.  A  prince  whose  character  is 
thus  marked  by  every  act  which  may  define  a  tyrant,  is  unfit  to  be 
the  ruler  of  a  free  people. 

Nor  have  we  been  wanting  in  our  attentions  to  our  British 
brethren.  We  have  warned  them,  from  time  to  time,  of  attempts 
by  their  legislature  to  extend  an  unwarrantable  jurisdiction  over 
us.  We  have  reminded  them  of  the  circumstances  of  our  emi- 
gration and  settlement  here.  We  have  appealed  to  their  native 
justice  and  magnanimity;  and  we  have  conjured  them,  by  the  ties 
of  our  common  kindred,  to  disavow  these  usurpations,  which 
would  inevitably  interrupt  our  connections  and  correspondence. 
They,  too,  have  been  deaf  to  the  voice  of  justice  and  of  consan- 
guinity. We  must,  therefore,  acquiesce  in  the  necessity  which 
denounces  our  separation,  and  hold  them,  as  we  hold  the  rest  of 
mankind,  enemies  in  war,  in  peace  friends. 

We,  therefore,  the  Representatives  of  the  United  States  of 
America,  in  General  Congress  assembled,  appealing  to  the  Su- 
preme Judge  of  the  world  for  the  rectitude  of  our  intentions,  do, 
in  the  Name,  and  by  Authority  of  the  good  People  of  these  Colo- 
nies, solemnly  publish  and  declare.  That  these  United  Colonies 
are,  and  of  Right  ought  to  be  Free  and  Independent  States;  that 
they  are  Absolved  from  all  Allegiance  to  the  British  Crown,  and 
that  all  political  connection  between  them  and  the  State  of  Great 
Britain,  is  and  ought  to  be  totally  dissolved;  and  that  as  Free  and 
Independent  States,  they  have  full  Power  to  levy  War,  conclude 
Peace,  contract  Alliances,  establish  Commerce,  and  to  do  all 
other  Acts  and  Things  which  Independent  States  may  of  right  do. 


Union,   Independence,  and  Self-Government     25 

And  for  the  support  of  this  Declaration,  with  a  firm  reliance  on 
the  Protection  of  Divine  Providence,  we  mutually  pledge  to  each 
other  our  Lives,  our  Fortunes  and  our  sacred  Honor. 

John  Hancock.^ 


II.    The  Articles  of  Confederation 

In  July,  1775,  almost  a  year  before  the  Declaration  of  Inde- 
pendence, Franklin  prepared  a  sketch  of  a  plan  for  union,  and 
during  the  winter  of  1775-1776  John  Adams  demanded  with 
great  insistence  that  attention  should  be  given  to  forming  a  con- 
federation among  the  colonies  in  revolt.  A  few  weeks  before  the 
final  announcement  of  independence,  a  committee  was  appointed 
by  the  Continental  Congress  to  prepare  the  articles  of  union,  and 
after  several  debates  and  tedious  delays  the  final  form  was  agreed 
upon  in  November,  1777.  One  after  the  other,  the  state  legisla- 
tures approved  the  plan,  and  in  March,  1781,  they  were  put  into 
effect.  This  document  deserves  careful  study  and  comparison 
with  the  Constitution  which  supplanted  it  in  1789,  for  it  was  in 
the  light  of  the  actual  experiences  encountered  under  the  Articles 
of  Confederation  that  the  existing  framework  of  our  federal  govern- 
ment and  its  various  functions  were  determined. 


How  the 
Articles 
were 
adopted. 


Articles  of  Confederation  and  Perpetual  Union  between 
THE  States  of  New  Hampshire,  Massachusetts  Bay, 
Rhode  Island  and  Providence  Plantations,  Connec- 
ticut, New  York,  New  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North  Carolina,  South  Carolina, 
AND  Georgia 


Article  I.  —  The  style  of  this  confederacy  shall  be,  "The 
United  States  of  America." 

Art.  II.  —  Each  State  retains  its  sovereignty,  freedom,  and 
independence,  and  every  power,  jurisdiction,  and  right  which  is 
not  by  this  confederation  expressly  delegated  to  the  United  States 
in  Congress  assembled. 

'  The  names  of  the  other  signers  are  omitted. 


/'.. 


26 


American   Government  and   Politics 


Protection 
of  inter- 
course 
among  the 
states. 


The 

Congress 
of  the 
United 
States. 


Art.  III.  —  The  said  States  hereby  severally  enter  into  a  firm 
league  of  friendship  with  each  other,  for  their  common  defense, 
the  security  of  their  liberties,  and  their  mutual  and  general  wel- 
fare, binding  themselves  to  assist  each  other  against  all  force 
ofifered  to,  or  attacks  made  upon  them,  or  any  of  them,  on 
account  of  religion,  sovereignty,  trade,  or  any  other  pretense 
whatever. 

Art.  IV.  —  The  better  to  secure  and  perpetuate  mutual  friend- 
ship and  intercourse  among  the  people  of  the  different  States  in 
this  Union,  the  free  inhabitants  of  each  of  these  States,  paupers, 
vagabonds,  and  fugitives  from  justice  excepted,  shall  be  entitled  to 
all  privileges  and  immunities  of  free  citizens  in  the  several  States ; 
and  the  people  of  each  State  shall  have  free  ingress  and  regress  to 
and  from  any  other  State,  and  shall  enjoy  therein  all  the  privileges 
of  trade  and  commerce,  subject  to  the  same  duties,  impositions, 
and  restrictions,  as  the  inhabitants  thereof  respectively ;  provided 
that  such  restrictions  shall  not  extend  so  far  as  to  prevent  the 
removal  of  property  imported  into  any  State,  to  any  other  State 
of  which  the  owner  is  an  inhabitant;  provided,  also,  that  no  im- 
position, duties,  or  restriction,  shall  be  laid  by  any  State  on  the 
property  of  the  United  States  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with,  treason,  felony,  or  other 
high  misdemeanor  in  any  State,  shall  flee  from  justice,  and  be 
found  in  any  of  the  United  States,  he  shall,  upon  demand  of  the 
governor  or  executive  power  of  the  State  from  which  he  fled,  be 
delivered  up,  and  removed  to  the  State  having  jurisdiction  of  his 
offense. 

Full  faith  and  credit  shafl  be  given,  in  each  of  these  States,  to 
the  records,  acts,  and  judicial  proceedings  of  the  courts  and  magis- 
trates of  every  other  State. 

Art.  V.  —  For  the  more  convenient  management  of  the  gen- 
eral interests  of  the  United  States,  delegates  shall  be  annually 
appointed  in  such  manner  as  the  legislature  of  each  State  shall 
direct,  to  meet  in  Congress  on  the  first  Monday  in  November,  in 
every  year,  with  a  power  reserved  to  each  State  to  recall  its  dele- 


Union,  Independence,  and  Self-Government     27 

gates,  or  any  of  them,  at  any  time  within  the  year,  and  to  send 
others  in  their  stead  for  the  remainder  of  the  year. 

No  State  shall  be  represented  in  Congress  by  less  than  two,  nor 
by  more  than  seven  members ;  and  no  person  shall  be  capable  of 
being  a  delegate  for  more  than  three  years,  in  any  term  of  six 
years ;  nor  shall  any  person,  being  a  delegate,  be  capable  of  hold- 
ing any  office  under  the  United  States,  for  which  he,  or  another 
for  his  benefit,  receives  any  salary,  fees,  or  emolument  of  any  kind. 

Each  State  shall  maintain  its  own  delegates  in  any  meeting  of 
the  States,  and  while  they  act  as  members  of  the  committee  of  the 
States. 

In  determining  questions  in  the  United  States,  in  Congress 
assembled,  each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  im- 
peached or  questioned  in  any  court  or  place  out  of  Congress;  and 
the  members  of  Congress  shall  be  protected  in  their  persons  from 
arrests  and  imprisonments  during  the  time  of  their  going  to  and 
from,  and  attendance  on  Congress,  except  for  treason,  felony,  or 
breach  of  the  peace. 

Art.  VI.  —  No  State,  without  the  consent  of  the  United  States,    Prohibitions 
in  Congress  assembled,  shall  send  any  embassy  to,  or  receive  any  °^ 
embassy  from,  or  enter  into  any  conference,  agreement,  alliance,   states, 
or  treaty,  with  any  king,  prince,  or  state;    nor  shall  any  person 
holding  any  office  of  profit  or  trust  under  the  United  States,  or 
any  of  them,  accept  of  any  present,  emolument,  office,  or  title  of 
any  kind  whatever,  from  any  king,  prince,  or  foreign  state;    nor 
shall  the  United  States,  in  Congress  assembled,  or  any  of  them, 
grant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confederation, 
or  alliance  whatever  between  them,  without  the  consent  of  the 
United  States,  in  Congress  assembled,  specifying  accurately  the 
purposes  for  which  the  same  is  to  be  entered  into,  and  how  long 
it  shall  continue. 

No  State  shall  lay  any  imposts  or  duties  which  may  interfere 
with  any  stipulations  in  treaties  entered  into  by  the  United  States, 


28  American   Government  and   Politics 

in  Congress  assembled,  with  any  king,  prince,  or  state,  in  pursu- 
ance of  any  treaties  already  proposed  by  Congress  to  the  courts  of 
France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  State, 
except  such  number  only  as  shall  be  deemed  necessary  by  the 
United  States,  in  Congress  assembled,  for  the  defence  of  such  State 
or  its  trade ;  nor  shall  any  body  of  forces  be  kept  up  by  any  State, 
in  time  of  peace,  except  such  number  only  as,  in  the  judgment  of 
the  United  States,  in  Congress  assembled,  shall  be  deemed  requisite 
to  garrison  the  forts  necessary  for  the  defence  of  such  State;  but 
every  State  shall  always  keep  up  a  well-regulated  and  disciplined 
militia,  sufficiently  armed  and  accoutred,  and  shall  provide  and 
constantly  have  ready  for  use,  in  public  stores,  a  due  number  of 
field  pieces  and  tents,  and  a  proper  quantity  of  arms,  ammunition 
and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of  the 
United  States  in  Congress  assembled,  unless  such  State  be  actually 
invaded  by  enemies,  or  shall  have  received  certain  advice  of  a 
resolution  being  formed  by  some  nation  of  Indians  to  invade  such 
State,  and  the  danger  is  so  imminent  as  not  to  admit  of  a  delay, 
till  the  United  States  in  Congress  assembled  can  be  consulted; 
nor  shall  any  State  grant  commissions  to  any  ships  or  vessels  of 
war,  nor  letters  of  marque  or  reprisal,  except  it  be  after  a  declara- 
tion of  war  by  the  United  States,  in  Congress  assembled,  and  then 
only  against  the  kingdom  or  state,  and  the  subjects  thereof  against 
which  war  has  been  so  declared,  and  under  such  regulations  as 
shall  be  established  by  the  United  States,  in  Congress  assembled, 
unless  such  State  be  infested  by  pirates,  in  which  case  vessels  of 
war  may  be  fitted  out  for  that  occasion,  and  kept  so  long  as  the 
danger  shall  continue,  or  until  the  United  States,  in  Congress 
assembled,  shall  determine  otherwise. 

Art.  VII.  —  When  land  forces  are  raised  by  any  State  for  the 
common  defense,  all  officers  of  or  under  the  rank  of  colonel,  shall 
be  appointed  by  the  legislature  of  each  State  respectively  by  whom 
such  forces  shall  be  raised,  or  in  such  manner  as  such  State  shall 


Union,   Independence,  and  Self-Government     29 

direct,  and  all  vacancies  shall  be  filled  up  by  the  State  which  first 
made  the  appointment. 
Art.  VIII.  —  All  charges  of  war,  and  all  other  expenses  that   How  taxes 

sll3,II    DC 

shall  be  incurred  for  the  common  defense  or  general  welfare,  and  leyjej 
allowed  by  the  United  States  in  Congress  assembled,  shall  be  de- 
frayed out  of  a  common  treasury,  which  shall  be  supplied  by  the 
several  States,  in  proportion  to  the  value  of  all  land  within  each 
State,  granted  to,  or  surveyed  for,  any  person,  as  such  land  and 
the  buildings  and  improvements  thereon  shall  be  estimated  accord- 
ing to  such  mode  as  the  United  States,  in  Congress  assembled, 
shall,  from  time  to  time,  direct  and  appoint.  The  taxes  for  paying 
that  proportion  shall  be  laid  and  levied  by  the  authority  and  direc- 
tion of  the  legislatures  of  the  several  States,  within  the  time  agreed 
upon  by  the  United  States,  in  Congress  assembled. 

Art.  IX.  —  The  United  States,  in  Congress  assembled,  shall   General 
have  the  sole  and  exclusive  right  and  power  of  determining  on   congress 
peace  and  war,  except  in  the  cases  mentioned  in  the  sixth  Article ;   with 
of  sending  and  receiving  ambassadors;   entering  into  treaties  and   fQ^gj*^"^*^ 
alliances,  provided  that  no  treaty  of  commerce  shall  be  made   matters, 
whereby  the  legislative  power  of  the  respective  States  shall  be 
restrained  from  imposing  such  imposts  and  duties  on  foreigners, 
as  their  own  people  are  subjected  to,  or  from  prohibiting  the  ex- 
portation or  importation  of  any  species  of  goods  or  commodities 
whatsoever;    of  establishing  rules  for  deciding,  in  all  cases,  what 
captures  on  land  or  water  shall  be  legal,  and  in  what  manner  prizes 
taken  by  land  or  naval  forces  in  the  service  of  the  United  States, 
shall  be  divided  or  appropriated;    of  granting  letters  of  marcjue 
and  reprisal  in  times  of  peace ;   appointing  courts  for  the  trial  of 
piracies  and  felonies  committed  on  the  high  seas;    and  establish- 
ing courts  for  receiving  and  determining  finally  appeals  in  all 
cases  of  captures ;   provided  that  no  member  of  Congress  shall  be 
appointed  a  judge  of  any  of  the  said  courts. 

The  United  States,  in  Congress  assembled,  shall  also  be  the 
last  resort  on  appeal,  in  all  disputes  and  differences  now  subsist- 
ing, or  that  hereafter  may  arise  between  two  or  more  States  con- 


JO  American   Government  and   Politics 

cerning  boundary,  jurisdiction,  or  any  other  cause  whatever; 
which  authority  shall  always  be  exercised  in  the  manner  follow- 
ing: Whenever  the  legislative  or  executive  authority,  or  lawful 
agent  of  any  State  in  controversy  with  another,  shall  present  a 
petition  to  Congress,  stating  the  matter  in  question,  and  praying 
for  a  hearing,  notice  thereof  shall  be  given  by  order  of  Congress, 
to  the  legislative  or  executive  authority  of  the  other  State  in  con- 
troversy, and  a  day  assigned  for  the  appearance  of  the  parties  by 
their  lawful  agents,  who  shall  then  be  directed  to  appoint,  by 
joint  consent,  commissioners  or  judges  to  constitute  a  court  for 
hearing  and  determining  the  matter  in  question ;  but  if  they  can- 
not agree,  Congress  shall  name  three  persons  out  of  each  of  the 
United  States,  and  from  the  list  of  such  persons  each  party  shall 
alternately  strike  out  one,  the  petitioners  beginning,  until  the 
number  shall  be  reduced  to  thirteen;  and  from  that  number  not 
less  than  seven  nor  more  than  nine  names,  as  Congress  shall 
direct,  shall,  in  the  presence  of  Congress,  be  drawn  out  by  lot; 
and  the  persons  whose  names  shall  be  so  drawn,  or  any  five  of 
them,  shall  be  commissioners  or  judges,  to  hear  and  finally  deter- 
mine the  controversy,  so  always  as  a  major  part  of  the  judges  who 
shall  hear  the  cause  shall  agree  in  the  determination ;  and  if  either 
party  shall  neglect  to  attend  at  the  day  appointed,  without  show- 
ing reasons  which  Congress  shall  judge  sufl&cient,  or  being  present, 
shall  refuse  to  strike,  the  Congress  shall  proceed  to  nominate  three 
persons  out  of  each  State,  and  the  secretary  of  Congress  shall 
strike  in  behalf  of  such  party  absent  or  refusing;  and  the  judg- 
ment and  sentence  of  the  court,  to  be  appointed  in  the  manner 
before  prescribed,  shall  be  final  and  conclusive ;  and  if  any  of  the 
parties  shall  refuse  to  submit  to  the  authority  of  such  court,  or  to 
appear  or  defend  their  claim  or  cause,  the  court  shall  nevertheless 
proceed  to  pronounce  sentence  or  judgment,  which  shall  in  like 
manner  be  final  and  decisive ;  the  judgment  or  sentence  and  other 
proceedings  being  in  either  case  transmitted  to  Congress,  and 
lodged  among  the  acts  of  Congress  for  the  security  of  the  parties 
concerned;   provided,  that  every  commissioner,  before  he  sits  in 


Union,  Independence,  and  Self-Go vernment     31 

judgment,  shall  take  an  oath,  to  be  administered  by  one  of  the 
judges  of  the  superior  court  of  the  State  where  the  cause  shall  be 
tried,  "well  and  truly  to  hear  and  determine  the  matter  in  ques- 
tion, according  to  the  best  of  his  judgment,  without  favour,  affec- 
tion, or  hope  of  reward."  Provided,  also,  that  no  State  shall  be 
deprived  of  territory  for  the  benefit  of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil  claimed 
under  different  grants  of  two  or  more  States,  whose  jurisdictions, 
as  they  may  respect  such  lands,  and  the  States  which  passed  such 
grants,  are  adjusted,  the  said  grants  or  either  of  them  being  at 
the  same  time  claimed  to  have  originated  antecedent  to  such  set- 
tlement of  jurisdiction,  shall,  on  the  petition  of  either  party  to 
the  Congress  of  the  United  States,  be  finally  determined,  as  near 
as  may  be,  in  the  same  manner  as  is  before  prescribed  for  deciding 
disputes  respecting  territorial  jurisdiction  between  different  States. 

The  United  States,  in  Congress  assembled,  shall  also  have  the   Powers 
sole  and  exclusive  right  and  power  of  regulating  the  alloy  and   °  j.  °"^ress 
value  of  coin  struck  by  their  own  authority,  or  by  that  of  the  re-   ing  domestic 
spective   States;    fixing  the  standard  of  weights  and  measures  '^°'^'^^^'^^- 
throughout  the  United  States ;  regulating  the  trade  and  managing 
all  affairs  with  the  Indians  not  members  of  any  of  the  States;  pro- 
vided that  the  legislative  right  of  any  State,  within  its  own  limits, 
be  not  infringed  or  violated;    establishing  and  regulating  post- 
offices  from  one  State  to  another  throughout  all  the  United  States, 
and  exacting  such  postage  on  the  papers  passing  through  the  same 
as  may  be  required  to  defray  the  expenses  of  the  said  office;   ap- 
pointing all  officers  of  the  land  forces  in  the  service  of  the  United 
States,  excepting  regimental  officers ;   appointing  all  the  officers  of 
the  naval  forces,  and  commissioning  all  officers  whatsoever  in 
the  service  of  the  United  States;    making  rules  for  the  govern- 
ment and  regulation  of  the  said  land  and  naval  forces,  and  di- 
recting their  operations. 

The  United  States,  in  Congress  assembled,  shall  have  au- 
thority to  appoint  a  committee,  to  sit  in  the  recess  of  Congress,  to 
be  denominated  "A  Committee  of  the  States,"  and  to  consist  of 


32  American  Government  and  Politics 

one  delegate  from  each  State;  and  to  appoint  such  other  com- 
mittees and  civil  officers  as  may  be  necessary  for  managing  the 
general  affairs  of  the  United  States  under  their  direction;  to 
appoint  one  of  their  number  to  preside,  provided  that  no  person 
be  allowed  to  serve  in  the  office  of  president  more  than  one  year 
in  any  term  of  three  years;  to  ascertain  the  necessary  sums  of 
money  to  be  raised  for  the  service  of  the  United  States,  and  to 
appropriate  and  apply  the  same  for  defraying  the  public  expenses ; 
to  borrow  money  or  emit  bills  on  the  credit  of  the  United  States, 
transmitting  every  half  year  to  the  respective  States  an  account  of 
the  sums  of  money  so  borrowed  or  emitted ;  to  build  and  equip  a 
navy;  to  agree  upon  the  number  of  land  forces,  and  to  make 
requisitions  from  each  State  for  its  quota,  in  proportion  to  the 
number  of  white  inhabitants  in  such  State,  which  requisition  shall 
be  binding;  and  thereupon  the  Legislature  of  each  State  shall 
appoint  the  regimental  officers,  raise  the  men,  and  clothe,  arm, 
and  equip  them  in  a  soldier-like  manner  at  the  expense  of  the 
United  States;  and  the  officers  and  men  so  clothed,  armed,  and 
equipped  shall  march  to  the  place  appointed,  and  within  the 
time  agreed  on  by  the  United  States,  in  Congress  assembled ;  but 
if  the  United  States,  in  Congress  assembled,  shall,  on  consideration 
of  circumstances,  judge  proper  that  any  State  should  not  raise 
men,  or  should  raise  a  smaller  number  than  its  quota,  and  that  any 
other  State  should  raise  a  greater  number  of  men  than  the  quota 
thereof,  such  extra  number  shall  be  raised,  officered,  clothed, 
armed,  and  equipped  in  the  same  manner  as  the  quota  of  such 
State,  unless  the  Legislature  of  such  State  shall  judge  that  such 
extra  number  can  not  be  safely  spared  out  of  the  same,  in  which 
case  they  shall  raise,  officer,  clothe,  arm,  and  equip  as  many  of 
such  extra  number  as  they  judge  can  be  safely  spared,  and  the 
officers  and  men  ....  shall  march  to  the  place  appointed,  and  with- 
in the  time  agreed  on  by  the  United  States,  in  Congress  assembled. 
The  United  States,  in  Congress  assembled,  shall  never  engage 
in  a  war,  nor  grant  letters  of  marque  and  reprisal  in  time  of  peace, 
nor  enter  into  any  treaties  or  alliances,  nor  coin  money,  nor  regu- 


Union,   Independence,  and  Self-Government     ;^2 

late  the  value  thereof,  nor  ascertain  the  sums  and  expenses  neces- 
sary for  the  defense  and  welfare  of  the  United  States,  or  any  of 
them,  nor  emit  bills,  nor  borrow  money  on  the  credit  of  the  United 
States,  nor  appropriate  money,  nor  agree  upon  the  number  of 
vessels  of  war  to  be  built  or  purchased,  or  the  number  of  land  or 
sea  forces  to  be  raised,  nor  appoint  a  commander-in-chief  of  the 
army  or  navy,  unless  nine  States  assent  to  the  same,  nor  shall  a 
question  on  any  other  point,  except  for  adjourning  from  day  to 
day,  be  determined,  unless  by  the  votes  of  a  majority  of  the  United 
States,  in  Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn 
to  any  time  within  the  year,  and  to  any  place  within  the  United 
States,  so  that  no  period  of  adjournment  be  for  a  longer  duration 
than  the  space  of  six  months,  and  shall  publish  the  journal  of 
their  proceedings  monthly,  except  such  parts  thereof  relating  to 
treaties,  alliances,  or  military  operations  as  in  their  judgment  re- 
quire secrecy;  and  the  yeas  and  nays  of  the  delegates  of  each  State, 
on  any  question,  shall  be  entered  on  the  journal  when  it  is  desired 
by  any  delegate ;  and  the  delegates  of  a  State,  or  any  of  them,  at 
his  or  their  request,  shall  be  furnished  with  a  transcript  of  the  said 
journal,  except  such  parts  as  are  above  excepted,  to  lay  before 
the  legislatures  of  the  several  States. 

Art.  X.  —  The  committee  of  the  States,  or  any  nine  of  them.  The 

shall  be  authorized  to  execute,  in  the  recess  of  Congress,  such  of  (-ommittee 

the  powers  of  Congress  as  the  United  States,  in  Congress  assembled,   to  act 

by  the  consent  of  nine  States,  shall,  from  time  to  time,  think  ex-     """^ 
-'  '  '  '  recesses. 

pedient  to  vest  them  with ;  provided  that  no  power  be  delegated 
to  the  said  committee,  for  the  exercise  of  which,  by  the  Articles  of 
Confederation,  the  voice  of  nine  States,  in  the  Congress  of  the 
United  States  assembled,  is  requisite. 

Art.  XI.  —  Canada  acceding  to  this  Confederation,  and  joining 
in  the  measures  of  the  United  States,  shall  be  admitted  into,  and 
entitled  to  all  the  advantages  of  this  Union ;  but  no  other  colony 
shall  be  admitted  into  the  same  unless  such  admission  be  agreed 
to  by  nine  States. 


34  American   Government  and   Politics 

Art.  XII.  —  All  bills  of  credit  emitted,  moneys  borrowed,  and 
debts  contracted  by  or  under  the  authority  of  Congress,  before 
the  assembling  of  the  United  States,  in  pursuance  of  the  present 
Confederation,  shall  be  deemed  and  considered  as  a  charge  against 
the  United  States,  for  payment  and  satisfaction  whereof  the  said 
United  States  and  the  public  faith  are  hereby  solemnly  pledged. 

Art.  XIII.  —  Every  State  shall  abide  by  the  determinations  of 
the  United  States,  in  Congress  assembled,  on  all  questions  which 
by  this  Confederation  are  submitted  to  them.  And  the  Articles 
of  this  Confederation  shall  be  inviolably  observed  by  every  State, 
and  the  Union  shall  be  perpetual;  nor  shall  any  alteration  at  any 
time  hereafter  be  made  in  any  of  them,  unless  such  alteration  be 
agreed  to  in  a  Congress  of  the  United  States,  and  be  afterwards 
confirmed  by  the  legislatures  of  every  State. 

And  whereas  it  hath  pleased  the  great  Governor  of  the  world  to 
incline  the  hearts  of  the  legislatures  we  respectively  represent  in 
Congress  to  approve  of,  and  to  authorize  us  to  ratify  the  said  Arti- 
cles of  Confederation  and  perpetual  Union,  Know  ye,  that  we, 
the  undersigned  delegates,  by  virtue  of  the  power  and  authority  to 
us  given  for  that  purpose,  do,  by  these  presents,  in  the  name  and 
in  behalf  of  our  respective  constituents,  fully  and  entirely  ratify 
and  confirm  each  and  every  of  the  said  Articles  of  Confederation 
and  perpetual  Union,  and  all  and  singular  the  matters  and  things 
therein  contained.  And  we  do  further  solemnly  plight  and  engage 
the  faith  of  our  respective  constituents,  that  they  shall  abide  by 
the  determinations  of  the  United  States,  in  Congress  assembled, 
on  all  questions  which  by  the  said  Confederation  are  submitted 
to  them ;  and  that  the  Articles  thereof  shall  be  inviolably  observed 
by  the  States  we  respectively  represent,  and  that  the  Union  shall 
be  perpetual.  In  witness  whereof  we  have  hereunto  set  our  hands 
in  Congress.  Done  at  Philadelphia,  in  the  State  of  Pennsylvania, 
the  ninth  day  of  July,  in  the  year  of  our  Lord  1778,  and  in  the 
third  year  of  the  Independence  of  America.^ 

*  Names  of  the  signers  omitted. 


Union,   Independence,  and  Self-Government     25 

12.    The  Continental  Congress  Recommends  the  Establishment  of 
State  Governments 

Amid  the  disorders  of  the  armed  conflict,  the  political  power 
of  the  Revolutionists  steadily  increased  until  at  length  the  gov- 
ernment of  each  colony  fell  entirely  into  their  hands.  They  con- 
tinued, however,  the  old  institutions  with  such  slight  modifica- 
tions as  the  new  circumstances  demanded.  In  May,  1776,  the 
Continental  Congress,  then  aware  that  independence  was  the 
goal  of  the  struggle,  passed  the  following  resolution  recommend- 
ing the  establishment  of  state  governments :  — 

In  Congress,  May  75,  iyy6. 

Whereas,  His  Britannic  Majesty,  in  conjunction  with  the  lords   All 
and  commons  of  Great  Britain,  has  by  a  late  act  of  parliament   exercised 
excluded  the  inhabitants  of  these  United  Colonies  from  the  pro-   under  the 
tection  of  his  crown :     And,  whereas,  no  answer  whatever  to  the    q^J^^  ^^  bg 
humble  petitions  of  the  colonies  for  redress  of  grievances  and   suppressed, 
reconciliation  with  Great  Britain  has  been  or  is  likely  to  be  given ; 
but  the  whole  force  of  the  kingdom,  aided  by  foreign  mercenaries, 
is  to  be  exerted  for  the  destruction  of  the  good  people  of  these 
colonies.     And  whereas,  it  appears  absolutely  irreconcilable   to 
reason  and  good  conscience,  for  the  people  of  these  colonies  now 
to  take  the  oaths  and  affirmations  necessary  for  the  support  of 
any  government  under  the  crown  of  Great  Britain ;  and  it  is  neces- 
sary that  the  exercise  of  every  kind  of  authority,  under  the  said 
crown  should  be  totally  suppressed,  and  all  the  powers  of  govern- 
ment exerted  under  the  authority  of  the  people  of  the  colonies  for 
the  preservation  of  internal  peace,  virtue,  and  good  order,  as  well 
as  for  the  defense  of  their  lives,  liberties,  and  properties  against 
the   hostile   invasions   and   cruel   depredation   of   their  enemies. 
Therefore, 

Resolved,  That  it  be  recommended  to  the  respective  assemblies 
and  conventions  of  the  United  Colonies,  where  no  government 
sufficient  to  the  exigencies  of  their  affairs  has  been  hitherto  estab- 
lished, to  adopt  such  government  as  shall,  in  the  opinion  of  the 


36 


American   Government  and   Politics 


representatives  of  the  people,  best  conduce  to  the  happiness  and 
safety  of  their  constituents  in  j)articular,  and  America  in  general. 

By  order  of  Congress, 

John  Hancock,  President. 


13.    The  Call  for  the  Maryland  State  Convention 

The  first  state  constitutions  were  drawn  up  by  quite  irregular 
assembhes  of  Revolutionists,  and  were  not  submitted  to  the  people 
for  ratification.  The  following  call  for  the  Maryland  convention, 
issued  by  a  revolutionary  assembly  for  that  province  on  July  3, 
1776,  can  be  taken  to  illustrate  in  a  general  way  only  the  process 
of  providing  an  official  body  for  constructing  the  first  state  govern- 
ments :  — 

Resolved,  That  a  new  convention  be  elected  for  the  express 
purpose  of  forming  a  new  government,  by  the  authority  of  the 
people  only,  and  enacting  and  ordering  all  things  for  the  preser- 
vation, safety,  and  general  weal  of  this  colony. 

Resolved,  That  there  be  four  representatives  chosen  for  each  oi 
the  districts  of  Frederick  county,  as  described  in  the  proceedings 
of  the  session  of  July  last,  two  representatives  for  the  city  of  Annap- 
olis, and  two  representatives  for  the  town  of  Baltimore  of  Baltimore 
county,  and  four  representatives  for  each  county  in  this  province 
except  Frederick  county  aforesaid;  but  that  the  inhabitants  of 
Annapolis  and  Baltimore  towns  be  not  allowed  to  vote  for  repre- 
sentatives for  the  respective  counties  nor  shall  the  resolution  be 
understood  to  engage  or  secure  such  representation  to  Annapolis 
or  Baltimore  town,  but  temporarily,  the  same  being,  in  the  opin- 
ion of  this  convention,  properly  to  be  modified,  or  taken  away,  on 
a  material  alteration  of  the  circumstances  of  those  places,  from 
either  a  depopulation  or  a  considerable  decrease  of  the  inhabit- 
ants thereof. 

That  all  freemen  above  twenty-one  years  of  age,  being  free- 
holders of  not  less  than  fifty  acres  of  land,  or  having  visible  prop- 
erty in  this  colony  to  the  value  of  ;^40  sterling  at  the  least  and  no 
others,  be  admitted  to  vote  for  representatives  to  serve  in  the  said 


Union,   Independence,  and  Self-Government     37 

convention  for  the  said  counties  and  districts,  and  the  town  of 
Baltimore  aforesaid;  and  that  all  freemen  above  twenty-one  years 
of  age,  owning  a  whole  lot  of  land  in  the  said  city  of  AnnapoHs,  or 
having  a  visible  estate  of  ;^20  sterling  at  the  least,  within  this  prov- 
ince, or  having  served  five  years  to  any  trade  within  the  said  city 
and  being  a  house-keeper,  and  no  others,  be  admitted  to  vote  for 
representatives  to  serve  in  the  said  convention  for  the  said  city, 
provided  such  person  shall  have  resided  in  the  county,  district, 
city  or  town  where  he  shall  offer  to  vote,  one  whole  year  next 
preceding  the  election. 

That  all  elections  of  the  said  representatives  be  free,  and  that 
the  same  be  made  viva  voce  in  the  manner  heretofore  used  in  this 
colony,  without  any  regard  to  any  act  of  parliament  or  other 
qualifications  than  before  mentioned.  And  to  prevent  any  vio- 
lence or  force  being  used  at  the  said  elections,  no  person  shall  come 
armed  to  any  of  them.  .  .  . 

That  any  person  qualified  as  aforesaid  to  vote,  may  be  elected 
a  member  of  the  intended  convention,  provided  he  be  above 
twenty-one  years  of  age,  and  shall  have  resided  in  the  colony  one 
whole  year  preceding  the  election. 

That  no  person  who  has  been  published  by  any  committee  of   Royalists 

excluded 

observation,  or  the  council  of  safety  of  this  colony,  as  an  enemy   f',.^^ 
to  the  liberties  of  America,  and  has  not  been  restored  to  the  favour   voting, 
of  his  country,  shall  be  permitted  to  vote  at  the  election  of  mem- 
bers for  the  said  convention. 


4a/^3 


CHAPTER  III 


ESTABLISHMENT   OF   THE   FEDERAL  CONSTITUTION 


The 

government 
under  the 
Articles  of 
Confedera- 
tion 

practically 
tested. 


The  Articles  of  Confederation  had  not  been  in  force  very  long 
before  it  was  abundantly  demonstrated  that  the  new  government 
was  inadequate  to  maintain  the  public  credit  of  the  nation,  ad- 
vance its  economic  and  commercial  interests,  and  guarantee  do- 
mestic concord  within  and  among  the  states.  It  was  after  a 
practical  trial  of  the  system  that  the  political  leaders  of  America 
came  to  see  the  necessity  for  reconstructing  the  federal  union  and 
were  led  to  meditate  seriously  upon  certain  definite  remedies  for 
the  abuses  which  had  sprung  up.  The  existence  of  a  large  num- 
ber of  clauses  in  the  present  Constitution,  such  as  the  one  for- 
bidding any  state  to  pass  a  law  impairing  the  obligation  of  con- 
tract, can  be  explained  solely  by  reference  to  the  conduct  of  states 
during  the  years  1781-1787.  The  reasons  for  the  failure  of  the 
Articles  of  Confederation  are  ably  summed  up  in  the  following 
document  by  Madison :  — 


States 

do  not  pay 

their 

taxes. 


14.    Madison's  Criticism  of  the  Articles  of  Confederation* 

1.  Failure  of  the  States  to  Comply  with  the  Constitutional 
Requisitions.  This  evil  has  been  so  fully  experienced  both  dur- 
ing the  war  and  since  the  peace,  results  so  naturally  from  the 
number  and  independent  authority  of  the  States,  and  has  been 
so  uniformly  exemplified  in  every  similar  Confederacy,  that  it 
may  be  considered  as  not  less  radically  and  permanently  in- 
herent in,  than  it  is  fatal  to  the  object  of,  the  present  system. 

2,  Encroachments  by  the  States  on  the  Federal  Authority. 
Examples  of  this  are  numerous,  and  repetitions  may  be  foreseen 
in  almost  every  case  where  any  favorite  object  of  a  State  shall 
present  a  temptation.     Among  these  examples  are  the  wars  and 

38 


Establishment  of  the   Federal   Constitution      39 

treaties  of  Georgia  with  the  Indians,  the  unlicensed  compacts 
between  Virginia  and  Maryland,  and  between  Pennsylvania  and 
New  Jersey,  the  troops  raised  and  to  be  kept  up  by  Massachusetts. 

3.  Violations  of  the  Law  of  Nations  and  of  Treaties.     From   Obligations 
the  number  of  Legislatures,  the  sphere  of  life  from  which  most  of   T"  • 
their  members  are  taken,  and  the  circumstances  under  which  their   powers 
legislative  business  is  carried  on,  irregularities  of  this  kind  must   ^^^     P*' 
frequently  happen.     Accordingly,  not  a  year  has  passed  without 
instances  of  them  in  some  one  or  other  of  the  States.     The  Treaty 

of  Peace,  the  treaty  with  France,  the  treaty  with  Holland,  have 
each  been  violated.  The  causes  of  these  irregularities  must 
necessarily  produce  frequent  violations  of  the  law  of  nations  in 
other  respects. 

As  yet,  foreign  powers  have  not  been  rigorous  in  animadverting 
on  us.  This  moderation,  however,  cannot  be  mistaken  for  a  per- 
manent partiahty  to  our  faults,  or  a  permanent  security  against 
those  disputes  with  other  nations,  which,  being  among  the  greatest 
of  pubHc  calamities,  it  ought  to  be  least  in  the  power  of  any  part 
of  the  community  to  bring  on  the  whole. 

4.  Trespasses  of  the  States  on  the  Rights  of  Each  Other.     These  The  states 

,  .  ^  ,  1        J    •!  Ill  discriminate 

are  aiarmmg  symptoms,  and  may  be  daily  apprehended,  as  we   against 
are  admonished  by  daily  experience.     See  the  law  of  Virginia  re-  one 
stricting  foreign  vessels  to  certain  ports;    of  Maryland  in  favor 
of  vessels  belonging  to  her  own  citizens;  of  New  York  in  favor  of 
the  same. 

Paper  money,  instalments  of  debts,  occlusion  of  courts,  making  Creditors 
property  a  legal  tender,  may  likewise  be  deemed  aggressions  on 
the  rights  of  other  States.  As  the  citizens  of  every  State,  aggre- 
gately taken,  stand  more  or  less  in  the  relation  of  creditors  or 
debtors  to  the  citizens  of  every  other  State,  acts  of  the  debtor 
State  in  favor  of  debtors  affect  the  creditor  State  in  the  same 
manner  as  they  do  its  own  citizens,  who  are,  relatively,  creditors 
towards  other  citizens.  This  remark  may  be  extended  to  foreign 
nations.  If  the  exclusive  regulation  of  the  value  and  alloy  of 
coin  was  properly  delegated  to  the  federal  authority,  the  policy  of 


another. 


insecure. 


40 


American   Government  and   Politics 


Commercial 
discrimina- 
tions. 


Wholesome 
national 
measures 
defeated  by 
perversity 
of  states. 


States  are    , 
in  danger  of 
domestic 
violence. 


it  equally  requires  a  control  on  the  States  in  rhe  cases  above 
mentioned.  It  must  have  been  meant:  (a)  To  preserve  uni- 
formity in  the  circulating  medium  throughout  the  nation,  (b)  To 
prevent  those  frauds  on  the  citizens  of  other  States,  and  the  sub- 
jects of  foreign  powers,  which  might  disturb  the  tranquillity  at 
home,  or  involve  the  union  in  foreign  contests. 

The  practice  of  many  States  in  restricting  the  commercial  inter- 
course with  other  States,  and  putting  their  productions  and  manu- 
factures on  the  same  footing  with  those  of  foreign  nations,  though 
not  contrary  to  the  federal  articles,  is  certainly  adverse  to  the  spirit 
of  the  Union,  and  tends  to  beget  retaliating  regulations,  not  less 
expensive  and  vexatious  in  themselves  than  they  are  destructive 
of  the  general  harmony. 

5.  Want  of  Concert  in  Matters  Where  Common  Interest  Re- 
quires It.  This  defect  is  strongly  illustrated  in  the  state  of  our 
commercial  affairs.  How  much  has  the  national  dignity,  interest, 
and  revenue  suffered  from  this  cause?  Instances  of  inferior 
moment  are  the  want  of  uniformity  in  the  laws  concerning  natu- 
ralization and  literary  property;  of  provision  for  national  semi- 
naries ;  for  grants  of  incorporation  for  national  purposes,  for  canals, 
and  other  works  of  general  utility;  which  may  at  present  be  de- 
feated by  the  perverseness  of  particular  States  whose  concurrence 
is  necessary. 

6.  Want  of  Guaranty  to  the  States  of  their  Constitutions  and 
Laws  against  Internal  Violence.  The  Confederation  is  silent 
on  this  point,  and  therefore  by  the  second  article  the  hands  of  the 
federal  authority  are  tied.  According  to  Republican  Theory, 
Right  and  power,  being  both  vested  in  the  majority,  are  held  to 
be  synonymous.  According  to  fact  and  experience,  a  minority 
may,  in  an  appeal  to  force,  be  an  overmatch  for  the  majority: 
(c)  If  the  minority  happen  to  include  all  such  as  possess  the  skill 
and  habits  of  military  life,  and  such  as  possess  the  great  pecuniary 
resources,  one-third  only  may  conquer  the  remaining  two-thirds. 
(b)  One-third  of  those  who  participate  in  the  choice  of  rulers  may 
be  rendered  a  majority  by  the  accession  of  those  whose   poverty 


Establishment  of  the   Federal   Constitution      41 

excludes  them  from  a  right  of  suffrage,  and  who,  for  obvious 
reasons,  will  be  more  likely  to  join  the  standard  of  sedition  than 
that  of  the  established  Government,  (c)  Where  slavery  exists, 
the  Republican  Theory  becomes  still  more  fallacious. 

7.    Want  of  Sanction  to  the  Laws  and  of  Coercion  in  the  Gov-   The  Con- 
ernment  of  the  Confederacy.     A  sanction  is  essential  to  the  idea  government 
of  law,  as  coercion  is  to  that  of  Government.     The  federal  system  has  no 
being  destitute  of  both,  wants  the  great  vital  principles  of  a  Politi-   gnforcine 
cal  Constitution.      Under  the  form  of   such  a  Constitution,  it  is   its  laws, 
in  fact  nothing  more  than  a  treaty  of  amity,  of  commerce,  and  of 
alliance,  between  independent  and  Sovereign  States.     From  what 
cause  could  so  fatal  an  omission  have  happened  in  the  Articles  of 
Confederation?     From  a  mistaken  confidence  that  the  justice, 
the  good  faith,  the  honor,  the  sound  policy  of  the  several  legisla- 
tive assemblies  would  render  superfluous  any  appeal  to  the  ordinary 
motives  by  which  the  laws  secure  the  obedience  of  individuals; 
a  confidence  which  does  honor  to  the  enthusiastic  virtue  of  the 
compilers,  as  much  as  the  inexperience  of  the  crisis  apologizes  for 
their  errors.     The  time  which  has  since  elapsed  has  had  the  double 
effect  of  increasing  the  light  and  tempering  the  warmth  v/ith  which 
the  arduous  work  may  be  revised. 

It  is  no  longer  doubted  that  a  unanimous  and  punctual  obedience   The 
of  13  independent  bodies  to  the  acts  of  the  federal  Government   q^  ^^^  gj^t^s 
ought  not  to  be  calculated  on.     Even  during  the  war,  when  ex-   cannot  be 
ternal  danger  supplied  in  some  degree  the  defect  of  legal  and   ^^^^    "^°"' 
coercive  sanctions,   how  imperfectly   did   the   States  fulfil   their 
obligations  to  the  Union?     In  time  of  peace  we  see  already  what 
is  to  be  expected.     How,  indeed,  could  it  be  otherwise?     In  the 
first  place,  every  general  act  of  the  Union  must  necessarily  bear 
unequally  hard  on  some  particular  member  or  members  of  it; 
secondly,  the  partiality  of  the  members  to  their  own  interests  and 
rights,  a  partiality  which  will  be  fostered  by  the  courtiers  of  popu- 
larity, will  naturally  exaggerate  the  inequality  where  it  exists, 
and  even  suspect  it  where  it  has  no  existence;    thirdly,  a  distrust 
of  the  voluntary  compliance  of  each  other  may  prevent  the  com- 


42 


American   Government  and   Politics 


The 

character 
of  the 

union  makes 
dissolution 
possible. 


Superfluous 
legislation 
by  the 
states. 


pliance  of  any,  although  it  should  be  the  latent  disposition  of  all. 
Here  are  causes  and  pretexts  which  will  never  fail  to  render  federal 
measures  abortive.  If  the  laws  of  the  States  were  merely  recom- 
mendatory to  their  citizens,  or  if  they  were  to  be  rejudged  by 
county  authorities,  what  security,  what  probability  would  exist 
that  they  would  be  carried  into  execution?  Is  the  security  or 
probability  greater  in  favor  of  the  acts  of  Congress,  which,  depend- 
ing for  their  execution  on  the  will  of  the  State  legislatures,  are, 
tho'  nominally  authoritative,  in  fact  recommendatory  only? 

8.  Want  of  Ratification  by  the  People  of  the  Articles  of  Con- 
federation. In  some  of  the  States  the  Confederation  is  recognized 
by  and  forms  a  part  of  the  Constitution.  In  others,  however,  it 
has  received  no  other  sanction  than  that  of  the  legislative  authority. 
From  this  defect  two  evils  result :  (a)  Whenever  a  law  of  a  State 
happens  to  be  repugnant  to  an  act  of  Congress,  particularly  wheji 
the  latter  is  of  posterior  date  to  the  former,  it  will  be  at  least  ques- 
tionable whether  the  latter  must  not  prevail ;  and  as  the  question 
must  be  decided  by  the  Tribunals  of  the  State,  they  will  be  most 
likely  to  lean  on  the  side  of  the  State.  {b)  As  far  as  the  union 
of  the  States  is  to  be  regarded  as  a  league  of  sovereign  powers,  and 
not  as  a  political  Constitution,  by  virtue  of  which  they  are  become 
one  sovereign  power,  so  far  it  seems  to  follow,  from  the  doctrine 
of  compacts,  that  a  breach  of  any  of  the  Articles  of  Confederation 
by  any  of  the  parties  to  it,  absolves  the  other  parties  from  their 
respective  obligations,  and  gives  them  a  right,  if  they  choose  to 
exert  it,  of  dissolving  the  Union  altogether. 

9.  Multiplicity  of  Laws  in  the  Several  States.  Among  the 
evils  of  our  situation,  may  well  be  ranked  the  multiplicity  of  laws, 
from  which  no  State  is  exempt.  As  far  as  laws  are  necessary  to 
mark  with  precision  the  duties  of  those  who  are  to  obey  them,  and 
to  take  from  those  who  are  to  administer  them  a  discretion  which 
might  be  abused,  their  number  is  the  price  of  liberty.  As  far  a& 
laws  exceed  this  limit  they  are  a  nuisance ;  a  nuisance  of  the  most 
pestilent  kind.  Try  the  Codes  of  the  several  States  by  this  test, 
and  what  a  luxuriancy  of  legislation  do  they  present.     The  short 


Establishment  of  the   Federal   Constitution      43 

period  of  independency  has  filled  as  many  pages  as  the  century 

which  preceded  it.     Every  year,  almost  every  session  adds  a  new 

volume.     A  review  of  the  ^several   Codes  will  shew  that  every 

necessary  and  useful  part  of  the  least  voluminous  of  them  might 

be  compressed  into  one-tenth  of  the  compass,  and  at  the  same 

time  be  rendered  ten-fold  as  perspicuous. 

10.    Mutability  of  the  Laws  of   the  States.     This  evil  is  inti-   Instability 

mately  connected  with  the  former,  yet  deserves  a  distinct  notice,   ?  ^  ^  f- 

-'  '  •'  '    legislation. 

as  it  emphatically  denotes  a  vicious  legislation.  We  daily  see 
laws  repealed  or  superseded  before  any  trial  can  have  been  made 
of  their  merits,  and  even  before  a  knowledge  of  them  can  have 
reached  the  remoter  districts  within  which  they  were  to  operate. 
In  the  regulations  of  trade,  this  instability  becomes  a  snare  not 
only  to  our  citizens,  but  to  foreigners  also. 

15.    The  Call  for  the  Constitutional  Convention,  1787 


The  recognition  of  the  abuses  arising  from  a  weak  form  of  con-   '^he 


demand  for 
a  revision  of 


federate  government  naturally  led  earnest  men  to  plan  for  its 
reconstruction.  In  1780,  even  before  the  Articles  of  Confedera-  rhcArtid'es 
tion  went  into  force,  Hamilton  had  drafted  a  ])lan  of  a  con-  of  Con- 
stitution; and  in  1785  the  legislature  of  Massachusetts,  on  the  federation 
recommendation  of  Governor  Bowdoin,  passed  a  resolution  in 
favor  of  calling  a  constitutional  convention.  The  following  year, 
on  the  initiative  of  Virginia,  a  convention  met  at  Annapolis  to 
consider  the  question  of  uniform  commercial  regulations,  among 
otlter  problems  of  interest  to  the  states.  Only  five  states  were 
represented,  so  that  no  important  business  was  transacted  relat- 
ing to  the  subject  before  the  assembly,  but  a  report,  drawn  up  by 
Hamilton,  recommending  a  general  convention  to  revise  the 
federal  system  was  adopted.  Hamilton's  report  was  sent  to  the 
Confederate  Congress  as  well  as  to  the  states,  and  on  February 
21,  1787,  that  body  passed  this  resolution:  — 

Resolved,  That,  in  the  opinion  of  Congress,  it  is  expedient  that, 
on  the  second  Monday  in  May  next,  a  convention  of  delegates, 
who  shall  have  been  appointed  by  the  several  States,  be  held  at 
Philadelphia,  for  the  sole  and  express  purpose  of  revising  the 


44  American   Government  and  Politics 

Articles  of  Confederation,  and  reporting  to  Congress  and  the 
several  legislatures  such  alterations  and  provisions  therein  as 
shall,  when  agreed  to  in  Congress  and  confirmed  by  the  States, 
render  the  federal  constitution  adequate  to  the  exigencies  of  gov- 
ernment and  the  preservation  of  the  Union. 

i6.   New  York  Resolves  to  Appoint  Delegates  to  the   Convention 

The  All  of  the  states  except  Rhode  Island  responded  to  the  resolu- 

response         ^Jq^  ^f  Congress  by  appointing  delegates  to  the  convention.     The 

,'^,.  resolution  of  the  New  York  legislature  given  below  is  in  general 

resolution  .  'iir  i  ri  i-  r 

of  Congress,    harmony  with  the  form  and  tenor  of  the  resolutions  of  the  other 
states. 

February,  1787. 
Resolved,  (if  the  Honourable  the  Assembly  concur  herein).  That 
three  Delegates  be  appointed  on  the  part  of  this  State  to  meet  such 
Delegates  as  may  be  appointed  on  the  part  of  the  other  States 
respectively,  on  the  Second  Monday  of  May  next,  at  Philadelphia, 
for  the  sole  and  express  purpose  of  revising  the  Articles  of 
Confederation,  and  reporting  to  Congress  and  to  the  several 
Legislatures  such  alterations  and  provisions  therein,  as  shall, 
when  agreed  to  in  Congress  and  confirmed  by  the  several  States, 
render  the  Federal  Constitution  adequate  to  the  exigencies  of 
Government  and  the  preservation  of  the  Union;  and  that,  in 
case  of  such  concurrence,  the  two  Houses  of  the  Legislature  will 
on  Tuesday  next  proceed  to  nominate  and  appoint  the  said  dele- 
gates in  like  manner  as  is  directed  by  the  Constitution  of  this 
state  for  nominating  and  appointing  delegates  to  Congress. 

17.    The  Difficulties  Confronting  the  Convention^ 

Owing  to  the  diversity  of  interests  among  the  states,  the  diffi- 
culties of  bringing  about  an  adjustment  acceptable  to  all  were 
numerous  and  weighty,  and  they  a])peared  at  one  time  so  insuper- 
able that  Franklin  recommended  to  the  convention  that  special 
prayer  be  offered  for  Divine  assistance.  A  clear  statement  of  the 
fundamental  obstacles  in  the  way  of  a  satisfactory  constitutional 


Establishment  of  the   Federal   Constitution      45 

settlement  is  given  in  The  Federalist,  from  which  this  extract  is 
taken : — 

Among  the  difficulties  encountered  by  the  convention,  a  very  The 

important  one  must  have  lain,  in  combining  the  requisite  stability  combtn^n" 

and  energy  in  government,  with  the  inviolable  attention  due  to  liberty 

liberty,  and  to  the  republican  form.     Without  substantially  ac-  ^"'^  ^^''""^ 

,      ,  ,  ,  ,  government. 

complishing  this  part  of  their  undertaking,  they  would  have  very 
imperfectly  fulfilled  the  object  of  their  appointment,  or  the  ex- 
pectation of  the  public:  yet  that  it  could  not  easily  be  accom- 
plished, will  be  denied  by  no  one  who  is  unwilling  to  betray  his 
ignorance  of  the  subject.  Energy  in  government  is  essential  to 
that  security  against  external  and  internal  dangers,  and  to  that 
prompt  and  salutary  execution  of  the  laws,  which  enter  into  the 
very  definition  of  good  government.  Stability  in  government  • 
is  essential  to  national  character,  and  to  the  advantages  annexed 
to  it,  as  well  as  to  that  repose  and  confidence  in  the  minds  of  the 
people,  which  are  among  the  chief  blessings  of  civil  society.  An 
irregular  and  mutable  legislation  is  not  more  an  evil  in  itself, 
than  it  is  odious  to  the  people;  and  it  may  be  pronounced  with 
assurance  that  the  people  of  this  country,  enlightened  as  they  are, 
with  regard  to  the  nature,  and  interested,  as  the  great  body  of 
them  are,  in  the^effects  of  good  government,  will  never  be  satisfied, 
till  some  remedy  be  applied  to  the  vicissitudes  and  uncertainties 
which  characterize  the  state  administrations. 

On  comparing,  however,  these  valuable  ingredients  with  the   Stability 
vital  principles  of  liberty,  we  must  perceive  at  once  the  difficulty  ^reauent 
of  mingling  them  together  in  their  due  proportions.     The  genius  elections, 
of  republican  liberty  seems  to  demand  on  one  side,  not  only  that 
all  power  should  be  derived  from  the  people;   but  that  those  en- 
trusted with  it  should  be  kept  in  dependence  on  the  people,  by  a 
short  duration  of  their  appointments ;    and  that  even  during  this 
short  period,  the  trust  should  be  placed  not  in  a  few,  but  in  a  number 
of  hands.     Stability,  on  the  contrary,  requires,  that  the  hands, 
in  which  power  is  lodged  should  continue  for  a  length  of  time  the 


46 


American   Government  and   Politics 


The 

pretensions 
of  the  large 
and  small 
states. 


same.  A  frequent  change  of  men  will  result  from  a  frequent  re- 
turn of  elections;  and  a  frequent  change  of  measures,  from  a  fre- 
quent change  of  men :  whilst  energy  of  government  requires  not  only 
a  certain  duration  of  power,  but  the  execution  of  it  by  a  single  hand. 

Not  less  arduous  must  have  been  the  task  of  marking  the 
proper  line  of  partition,  between  the  authority  of  the  general  and 
that  of  the  state  governments.  Every  man  will  be  sensible  of 
this  difficulty,  in  proportion  as  he  has  been  accustomed  to  con- 
template and  discriminate  objects,  extensive  and  complicated 
in  their  nature.  Experience  has  instructed  us,  also,  that  no  skill 
in  the  science  of  government  has  yet  been  able  to  discriminate  and 
define,  with  sufficient  certainty,  its  three  great  provinces,  the  leg- 
islative, executive,  and  judiciary;  or  even  the  privileges  or  powers 
of  the  different  legislative  branches.  Questions  daily  occur  in  the 
course  of  practice,  which  prove  the  obscurity  which  reigns  in  these 
subjects,  and  which  puzzle  the  greatest  adepts  in  political  science. 

To  the  difficulties  already  mentioned,  may  be  added  the  inter- 
fering pretensions  of  the  larger  and  smaller  states.  We  cannot 
err,  in  supposing  that  the  former  would  contend  for  a  participation 
in  the  government,  fully  proportioned  to  their  superior  wealth 
and  importance;  and  that  the  latter  would  not  be  less  tenacious 
of  the  equaUty  at  present  enjoyed  by  them.  We  may  well  suppose, 
that  neither  side  would  entirely  yield  to  the  other,  and  consequently 
that  the  struggle  could  be  terminated  only  by  compromise.  It  is 
extremely  probable  also,  that  after  the  ratio  of  representation  had 
been  adjusted,  this  very  compromise  must  have  produced  a  fresh 
struggle  between  the  same  parties,  to  give  such  a  turn  to  the  or- 
ganization of  government,  and  to  the  distribution  of  its  powers, 
as  would  increase  the  importance  of  the  branches,  in  forming 
which  they  had  respectively  obtained  the  greatest  share  of  influence. 
There  are  features  in  the  constitution  which  warrant  each  of  these 
suppositions ;  and  as  far  as  either  of  them  is  well  founded,  it  shows 
that  the  convention  must  have  been  compelled  to  sacrifice  theo- 
retical propriety,  to  the  force  of  extraneous  considerations. 

Nor  could  it  have  been  the  large  and  small  states  only,  which 


Establishment  of  the   Federal   Constitution      47 
would  marshal  themselves  in  opposition  to  each  other  on  various  The 


varying 
interests 


points.  Other  combinations,  resulting  from  a  difiference  of  local 
position  and  policy,  must  have  created  additional  difficulties,  of  the 
As  every  state  may  be  divided  into  different  districts  and  its  citizens  ^^^^''^ 
into  different  classes,  which  give  birth  to  contending  interests  and 
local  jealousies;  so  the  different  parts  of  the  United  States  are 
distinguished  from  each  other,  by  a  variety  of  circumstances, 
which  produce  a  like  effect  on  a  larger  scale.  And  although  this 
variety  of  interests,  for  reasons  sufficiently  explained  in  a  former 
paper,  may  have  a  salutary  influence  on  the  administration  of  the 
government,  when  formed;  yet  every  one  must  be  sensible  of 
the  contrary  influence  which  must  have  been  experienced  in  the 
task  of  forming  it. 

Would  it  be  wonderful,  if  under  the  pressure  of  all  these  diffi-   Deviations 
culties,  the  convention  should  have  been  forced  into  some  devia-   feet  theory 
tions  from  that  artificial  structure  and  regular  symmetry,  which   rendered  un- 
an  abstract  view  of  the  subject  might  lead  an  ingenious  theorist 
to  bestow  on  a  constitution  planned  in  his  closet,  or  in  his  imag- 
ination?    The  real  wonder  is  that  so  many  difficulties  should 
have  been  surmounted ;  and  surmounted  with  an  unanimity  almost 
as  unprecedented,  as  it  must  have  been  unexpected.     It  is  im- 
possible for  any  man  of  candour  to  reflect  on  this  circumstance, 
without  partaking  of  the  astonishment.     It  is  impossible,  for  the 
man  of  pious  reflection,  not  to  perceive  in  it  a  finger  of  that  Al- 
mighty Hand,  which  has  been  so  frequently  and  signally  extended 
to  our  relief  in  the  critical  stages  of  the  revolution. 

18.    Hamilton's  Plea  for  a  Strong  and  Stable  Government 

In  Hamilton's  view,  the  conduct  of  the  legislatures  of  the  sev- 
eral states  during  the  period  of  confederation  had  demonstrated  the 
inability  of  the  people  to  rule  themselves  without  powerful  checks, 
and,  in  an  argument  for  a  life  term  for  United  States  senators,  he 
summed  up  his  political  philosophy. 

All  communities  divide  themselves  into  the  few  and  the  many. 
The  first  are  the  rich  and  well-born,  the  other  the  mass  of  the 


48  American   Government  and   Politics 

The  people.     The  voice  of  the  people  has  been  said  to  be  the  voice 

fuTbuLnr      °^  God;  and,  however  generally  this  maxim  has  been  quoted  and 
and  beheved,  it  is  not  true  in  fact.     The  people  are  turbulent  and 

c  ange  u  .  changing;  they  seldom  judge  or  determine  right.  Give,  therefore, 
to  the  first  class  a  distinct,  permanent  share  in  the  government. 
They  will  check  the  unsteadiness  of  the  second,  and,  as  they  can- 
not receive  any  advantage  by  a  change,  they  therefore  will  ever 
maintain  good  government.  Can  a  democratic  Assembly,  who 
annually  revolve  in  the  mass  of  the  people,  be  supposed  steadily 
to  pursue  the  public  good?  Nothing  but  a  permanent  body  can 
check  tne  imprudence  of  democracy.  Their  turbulent  and  un- 
controllable disposition  requires  checks. 
The  The  Senate  of  New  York,  although  chosen  for  four  years,  we 

and  Senate  have  found  to  be  inefficient.  Will,  on  the  Virginian  plan,  a  con- 
as  checks  on  tinuance  of  seven  years  do  it  ?  It  is  admitted  that  you  cannot  have 
emocrac} .  ^  good  Executive  upon  a  democratic  plan.  See  the  excellency  of 
the  British  Executive.  He  is  placed  above  temptation.  He  can 
have  no  distinct  interests  from  the  public  welfare.  Nothing  short 
of  such  an  executive  can  be  efficient.  The  weak  side  of  a  republi- 
can government  is  the  danger  of  foreign  influence.  This  is  un- 
avoidable, unless  it  is  so  constructed  as  to  bring  forward  its  first 
characters  in  its  support.  I  am,  therefore,  for  a  general  govern- 
ment, yet  would  wish  to  go  the  full  length  of  repubhcan  principles. 
Let  one  body  of  the  Legislature  be  constituted  during  good  be- 
havior or  life.  Let  one  Executive  be  appointed  who  dares  exe- 
cute his  powers.  It  may  be  asked:  Is  this  a  republics,n  system? 
It  is  strictly  so,  as  long  as  they  remain  elective.  And  let  me  ob- 
serve, that  an  Executive  is  less  dangerous  to  the  liberties  of  the 
people  when  in  office  during  life,  than  for  seven  years.  It  may 
be  said,  this  constitutes  an  elective  monarchy.  Pray,  what  is  a 
monarchy?  May  not  the  governors  of  the  respective  States 
be  considered  in  that  light?  But,  by  making  the  Executive  sub- 
ject to  impeachment,  the  term  monarchy  cannot  apply.  These 
elective  monarchs  have  produced  tumults  in  Rome,  and  are  equally 
dangerous  to  peace  in  Poland;   but  this  cannot  apply  to  the  mode 


Establishment  of  the   Federal   Constitution      49 


in  which  I  would  propose  the  election.  Let  electors  be  appointed 
in  each  of  the  States  to  elect  the  Legislature,  to  consist  of  two 
branches;  and  I  would  give  them  the  unlimited  power  of  passing 
all  laws,  without  exception.  The  Assembly  to  be  elected  for 
three  years,  by  the  people  in  districts.  The  Senate  to  be  elected 
by  electors  to  be  chosen  for  that  purpose  by  the  people,  and  to 
remain  in  office  during  life.  The  Executive  to  have  the  power  of 
negativing  all  laws;  to  make  war  or  peace,  with  their  advice, 
but  to  have  the  sole  direction  of  all  military  operations,  and  to 
send  ambassadors,  and  appoint  all  military  officers ;  and  to  pardon 
all  offenders,  treason  excepted,  unless  by  advice  of  the  Senate. 
On  his  death  or  removal,  the  President  of  the  Senate  to  officiate, 
with  the  same  powers,  until  another  is  elected.  Supreme  judi- 
cial officers  to  be  appointed  by  the  Executive  and  the  Senate. 

The  Legislature  to  appoint  courts  in  each  State,  so  as  to  make  State 
the  State  governments  unnecessary  to  it.  All  State  laws  which 
contravene  the  general  laws  to  be  absolutely  void.  An  officer  to 
be  appointed  in  each  State,  to  have  a  negative  on  all  State  laws. 
All  the  militia,  and  the  appointment  of  officers,  to  be  under  the 
national  government.  I  confess  that  this  plan  and  that  from 
Virginia  are  very  remote  from  the  idea  of  the  people.  Perhaps 
the  Jersey  plan  is  nearest  their  expectation.  But  the  people  are 
gradually  ripening  in  their  opinions  of  government;  they  begin 
to  be  tired  of  an  excess  of  democracy;  and  what  even  is  the  Vir- 
ginia plan,  but  "pork  still,  with  a  little  change  of  sauce." 


laws  to  be 
controlled 
by  the 
federal 
government. 


19.    The  Philosophy  of  the  American  Constitutional  System  ac- 
cording to  Madison 

However  much  some  of  the  members  of  the  convention  sympa- 
thized with  the  extreme  views  of  Hamilton,  it  was  the  consensus 
of  opinion  that  a  golden  mean  should  be  sought  between  direct 
popular  rule  and  the  more  aristocratic  system  which  he  pro- 
posed. The  framers  of  the  Constitution,  therefore,  sought  to  avoid 
"an  excess  of  democracy  on  one  hand  and  an  excess  of  aristoc-  aristocracy 
racy  on  the  other,"  and  the  logic  of  their  system  is  thus  admirably 
stated  by  Madison. 


The  Con- 
stitution a 
compromise 
between 
democracy 
and 


50 


American   Government  and   Politics 


Complaints  are  everywhere  heard  from  our  most  considerate 
and  virtuous  citizens,  equally  the  friends  of  public  and  private 
faith,  and  of  pubhc  and  personal  liberty,  that  our  governments 
are  too  unstable ;  that  the  public  good  is  disregarded  in  the  con- 
flicts of  rival  parties;  and  that  measures  are  too  often  decided, 
not  according  to  the  rules  of  justice,  and  the  rights  of  the  minor 
party,  but  by  the  superior  force  of  an  interested  and  overbearing 
majority.  However  anxiously  we  may  wish  that  these  com- 
plaints had  no  foundation,  the  evidence  of  known  facts  will  not 
permit  us  to  deny  that  they  are  in  some  degree  true.  It  will  be 
found,  indeed,  on  a  candid  re\iew  of  our  situation,  that  some  of 
the  distresses  under  which  we  labor,  have  been  erroneously  charged 
on  the  operation  of  our  governments ;  but  it  will  be  found,  at  the 
same  time,  that  other  causes  will  not  alone  account  for  many  of 
our  heaviest  misfortunes;  and,  particularly,  for  that  prevailing 
and  increasing  distrust  of  public  engagements,  and  alarm  for 
private  rights,  which  are  echoed  from  one  end  of  the  continent 
to  the  other.  These  must  be  chiefly,  if  not  wholly,  effects  of  the 
unsteadiness  and  injustice,  with  which  a  factious  spirit  has  tainted 
our  public  administrations. 

By  a  faction,  I  understand  a  number  of  citizens,  whether  amount- 
ing to  a  majority  or  a  minority  of  the  whole,  who  are  united  and 
actuated  by  some  common  impulse  of  passion,  or  of  interest, 
adverse  to  the  rights  of  other  citizens,  or  to  the  permanent  and 
aggregate  interests  of  the  community. 

As  long  as  the  reason  of  man  continues  fallible  and  he  is  at 
liberty  to  exercise  it,  different  opinions  will  be  formed.  As  long 
as  the  connection  exists  between  his  reason  and  his  self-love,  his 
opinions  and  his  passions  will  have  a  reciprocal  influence  on  each 
other;  and  the  former  will  be  objects  to  which  the  latter  will 
attach  themselves.  The  diversity  in  the  faculties  of  men,  from 
which  the  rights  of  property  originate,  is  not  less  an  insuperable 
obstacle  to  an  uniformity  of  interests.  The  protection  of  these 
faculties  is  the  first  object  of  government.  From  the  protection 
of  different  and  unequal  faculties  of  acquiring  property,  the  pos- 


Establishment  of  the   Federal   Constitution       51 

session  of  different  degrees  and  kinds  of  property  immediately 
results;  and  from  the  influence  of  these  on  the  sentiments  and 
views  of  the  respective  proprietors,  ensues  a  division  of  the  society 
into  different  interests  and  parties.  .  .  . 

The  most  common  and  durable  source  of  factions    has  been   The 
the  various  and  unequal  distribution  of  property.     Those  who   ^"g^^bution 
hold,  and  those  who  are  without  property,  have  ever  formed  dis-   of  property 
tinct  interests  in  society.     Those  who  are  creditors,  and  those   ^  source 

•'  _  of  party 

who  are  debtors,  fall  under  a  like  discrimination.  A  landed  divisions. 
interest,  a  manufacturing  interest,  a  mercantile  interest,  a  moneyed 
interest,  with  many  lesser  interests,  grow  up  of  necessity  in  civihzed 
nations,  and  divide  them  into  different  classes,  actuated  by  dif- 
ferent sentiments  and  views.  The  regulation  of  these  various  and 
interfering  interests  forms  the  principal  task  of  modern  legisla- 
tion, and  involves  the  spirit  of  party  and  faction  in  the  necessary 
and  ordinary  operations  of  government. 

No  man  is  allowed  to  be  a  judge  in  his  own  cause ;  because  his  How  in- 
interest  will  certainly  bias  his  judgment,  and,  not  improbably,  ^g^^se^^in"^^^ 
corrupt  his  integrity.  With  equal,  nay,  with  greater  reason,  legislation, 
a  body  of  men  are  unfit  to  be  both  judges  and  parties  at  the  same 
time ;  yet  what  are  many  of  the  most  important  acts  of  legislation, 
but  so  many  judicial  determinations,  not  indeed  concerning  the 
rights  of  single  persons,  but  concerning  the  rights  of  large  bodies 
of  citizens?  and  what  are  the  different  classes  of  legislators,  but 
advocates  and  parties  to  the  causes  which  they  determine?  Is 
a  law  proposed  concerning  private  debts?  It  is  a  question  to 
which  the  creditors  are  parties  on  one  side,  and  the  debtors  on  the 
other.  Justice  ought  to  hold  the  balance  between  them.  Yet 
the  parties  are,  and  must  be,  themselves  the  judges :  and  the  most 
numerous  party,  or,  in  other  words,  the  most  powerful  faction, 
must  be  expected  to  prevail.  Shall  domestic  manufactures  be 
encouraged,  and  in  what  degree,  by  restrictions  on  foreign  manu- 
factures? are  questions  which  would  be  differently  decided  by 
the  landed  and  the  manufacturing  classes ;  and  probably  by  neither 
with  a  sole  regard  to  justice  and  the  public  good.     The  appor- 


52 


American   Government  and   Politics 


tionment  of  taxes,  on  the  various  descriptions  of  property,  is  an 
act  which  seems  to  require  the  most  exact  impartiahty;  yet  there 
is,  perhaps,  no  legislative  act  in  which  greater  opportunity  and 
temptation  are  given  to  a  predominant  party,  to  trample  on  the 
rules  of  justice.  Every  shilling,  with  which  they  overburden  the 
inferior  number,  is  a  shilling  saved  to  their  own  pockets. 

It  is  in  vain  to  say,  that  enhghtened  statesmen  will  be  able  to 
adjust  these  clashing  interests,  and  render  them  all  subservient 
to  the  public  good.  Enlightened  statesmen  will  not  always  be 
at  the  helm :  nor,  in  many  cases,  can  such  an  adjustment  be  made 
at  all,  without  taking  into  view  indirect  and  remote  considera- 
tions, which  will  rarely  prevail  over  the  immediate  interest  which 
one  party  may  find  in  disregarding  the  rights  of  another,  or  the 
good  of  the  whole. 

The  inference  to  which  we  are  brought  is,  that  the  causes  of 
faction  cannot  be  removed;  and  that  relief  is  only  to  be  sought 
in  the  means  of  controlling  its  ejfects.  If  a  faction  consists  of 
less  than  a  majority,  relief  is  supplied  by  the  republican  principle, 
which  enables  the  majority  to  defeat  its  sinister  views,  by  regular 
vote.  It  may  clog  the  administration,  it  may  convulse  the  society; 
but  it  will  be  unable  to  execute  and  mask  its  violence  under  the 
forms  of  the  constitution.  When  a  majority  is  included  in  a 
faction,  the  form  of  popular  government,  on  the  other  hand, 
enables  it  to  sacrifice  to  its  ruhng  passion  or  interest,  both  the 
public  good  and  the  rights  of  other  citizens.  To  secure  the  public 
good,  and  private  rights,  against  the  danger  of  such  a  faction,  and 
at  the  same  time  to  preserve  the  spirit  and  the  form  of  popular 
government,  is  then  the  great  object  to  which  our  inquiries  are 
directed.  Let  me  add,  that  it  is  the  great  desideratum,  by  which 
alone  this  form  of  government  can  be  rescued  from  the  opprobrium 
under  which  it  has  so  long  laboured,  and  be  recommended  to  the 
esteem  and  adoption  of  mankind. 

By  what  means  is  this  object  attainable?  Evidently  by  one 
of  two  only.  Either  the  existence  of  the  same  passion  or  interest 
in  a  majority,  at  the  same  time  must  be  prevented ;  or  the  majority, 


Establishment  of  the   Federal  Constitution       ^^ 

having  such  coexistent  passion  or  interest,  must  be  rendered,  by  Majorities 

their  number  and  local  situation,  unable  to  concert  and  carry  prevent^ed 

into  eflfect  schemes  of  oppression.     If  the  impulse  and  the  op-  from 

portunity  be  suffered  to  coincide,  we  well  know,  that  neither  moral  °PP''^^^.'"S 

^  -^  '  '  minonties. 

nor  religious  motives  can  be  relied  on  as  an  adequate  control. 
They  are  not  found  to  be  such  on  the  injustice  and  violence  of 
individuals,  and  lose  their  efficacy  in  proportion  to  the  number 
combined  together;  that  is,  in  proportion  as  their  efficacy  becomes 
needful. 

20.    Transmission  of  the  New  Constitution  to  Congress 

The  convention  of  delegates  to  revise  the  Articles  of  Confed- 
eration was  organized  on  May  25,  1787,  and,  casting  aside  the 
instructions  given  to  the  members  by  their  respective  state  legisla- 
tures, drafted  a  wholly  new  document.  The  work  was  com- 
pleted by  the  signing  of  the  instrument  on  September  17,  and  the 
new  Constitution  was  then  transmitted  to  the  Congress  with  the 
following  recommendations:  — 

Resolved,  That  the  preceding  constitution  be  laid  before  the   The  Con- 
United  States  in  congress  assembled,  and  that  it  is  the  opinion   to'be'°" 
of  this  convention,   that  it  should  afterwards  be   submitted   to   ratified 
a  convention  of  delegates,  chosen  in  each  state  by  the  people     ^  ^'■^^^. 
thereof,  under  the  recommendation  of  its  legislature,  for  their 
assent  and  ratification ;  and  that  each  convention  assenting  thereto, 
and  ratifying  the  same,  should  give  notice  thereof  to  the  United 
States  in  congress  assembled. 

Resolved,  That  it  is  the  opinion  of  this  convention,  that  as  soon 
as  the  conventions  of  nine  States  shall  have  ratified  this  con- 
stitution, the  United  States  in  congress  assembled  should  fix  a  day 
on  which  electors  should  be  appointed  by  the  states  which  shall   Congress 
have  ratified  the  same,  and  a  day  on  which  the  electors  should   provide  for 
assemble  to  vote  for  the  president,  and  the  time  and  ])hicc  for  the  elections 
commencing   proceedings    under    this    constitution.     That    after   [,°  ^I'Jj.  ^^^^ 
such  publication  the  electors  should  be  appointed,  and  the  senators   mw  Con- 
and  representatives  elected;    that  the    electors    should   meet  on   '^^'^"^'""- 


54  American  Government  and  Politics 

the  day  fixed  for  the  election  of  the  president,  and  should  transmit 
their  votes  certified,  signed,  sealed,  and  directed,  as  the  con- 
stitution requires,  to  the  secretary  of  the  United  States  in  congress 
assembled;  that  the  senators  and  representatives  should  convene 
at  the  time  and  place  assigned;  that  the  senators  should  appoint 
a  president  of  the  senate,  for  the  sole  purpose  of  recei\ing,  opening, 
and  counting  the  votes  for  president;  and  that  after  he  shall  be 
chosen,  the  congress,  together  with  the  president,  should  without 
delay  proceed  to  execute  this  constitution. 
By  the  unanimous  order  of  the  convention. 

George  Washington,  President. 

21.   Ratification  of  the  New  Constitution  by  the  States 

Congress  acted  on  the  recommendations  of  the  convention  and 
transmitted  the  document  to  the  states  for  approval  or  disapproval 
by  special  conventions.  The  process  of  ratification  is  fully  il- 
lustrated by  the  formal  announcement  issued  by  the  Georgia 
convention  on  January  2,  1788.^ 

In  Convention,  Wednesday,  January  2,  1788. 
To  all  to  whom  these  presents  shall  come,  Greeting: 

Where  the  form  of  a  Constitution  for  the  government  of  the 
United  States  of  Ametica,  was,  on  the  17th  day  of  September, 
1787,  agreed  upon  and  reported  to  Congress  by  the  deputies  of 
the  said  United  States  convened  in  Philadelphia,  which  said  Cons- 
titution is  written  in  the  words  following,  to  wit: 

And  M'hereas  the  United  States  in  Congress  assembled  did, 
on  the  28th  day  of  September,  1787,  resolve,  unanimously,  "That 
the  said  report,  with  the  resolution  and  letter  accompanying  the 
same,  be  transmitted  to  the  several  legislatures,  in  order  to  be 

'  The  dates  of  ratification  are  as  follows:  Delaware,  December  7,  1787;  Penn- 
sylvania, December  12,  1787;  New  Jersey,  December  18,  1787;  Georgia,  January 
2,  1788;  Connecticut,  January  9;  Massachusetts,  FebruarAr  7;  Maryland,  April 
28;  South  Carolina,  May  23;  New  Hampshire  (the  ninth  state),  June  21,  1788; 
Virginia,  June  25;  New  York,  July  26,  1788;  North  Carolina,  November  21, 
1789;  Rhode  Island,  May  29,   1790. 


Establishment  of  the   Federal   Constitution       ^^ 

submitted  to  a  convention  of  delegates  chosen  in  each  State  by 
the  people  thereof,  in  conformity  to  the  resolves  of  the  Conven- 
tion made  and  provided  in  that  case." 

And  whereas  the  legislature  of  the  State  of  Georgia  did,  on  the   How 
26th  day  of  October,  1787,  in  pursuance  of  the  above  recited  reso-    convention 
lution  of  Congress,  resolve,  that  a  convention  be  elected  on  the   was  called, 
day  of  the  next  general  election,  and  in  the  same  manner  that 
representatives  are  elected;    and  that  the  said  Convention  consist 
of  not  more  than  three  members  from  each  county;    and  that 
the  said  convention  should  meet  at  Augusta,  on  the  4th  Tuesday 
in  December  then  next,  and,  as  soon  thereafter  as  convenient,  pro- 
ceed to  consider  the  said  report  and  resolutions,  and  to  adopt  or 
reject  any  part  or  the  whole  thereof. 

Now  know  ye,  that  we,  the  delegates  of  the  people  of  the  State 
of  Georgia,  in  convention  met,  pursuant  to  the  resolutions  of  the 
legislature  aforesaid,  having  taken  into  our  serious  consideration 
the  said  Constitution,  have  assented  to,  ratified,  and  adopted, 
and  by  these  presents  do,  in  virtue  of  the  powers  and  authority 
to  us  given  by  the  people  of  the  said  State,  for  that  purpose,  for 
and  in  behalf  of  ourselves  and  our  constituents,  fully  and  entirely  The 
assent  to,  ratify,  and  adopt,  the  said  Constitution.  ratifies^'^" 

Done  in  Convention,  at  Augusta,  in  the  said  State,  on  the  2d  the  Con- 
day  of  January,  in  the  year  of  our  Lord  1788,  and  of  the  independ-  st'^"^°'^- 
ence  of  the  United  States  the  12th. 

In  witness  whereof,  we  have  hereunto  subscribed  our  names. 

John  Wereat,  President, 
and  delegate  for  the  county  of  Richmond. 


CHAPTER   IV 

THE   DEVELOPMENT   OF   THE   FEDERAL   CONSTITUTION 

Since  the  federal  Constitution  was  established,  the  thirteen  orig- 
inal states  have  increased  to  forty-six,  the  economic  system  pre- 
vailing at  the  close  of  the  eighteenth  century  has  been  overthrown 
by  the  Industrial  Revolution,  and  undreamt-of  social  questions 
have  been  raised.  Before  this  marvelous  development  of  the 
nation,  the  system  of  government  devised  in  1787  would  have 
broken  down,  if  attempts  had  been  made  to  limit  its  operations 
to  the  strict  letter  of  the  law.  It  is  true  that  Article  V  of  the  in- 
strument made  provisions  for  amendments,  but  the  fifteen  articles 
that  have  been  added  by  the  formal  process  are  no  index  to  the 
real  constitutional  evolution  of  the  country.  This  must  be  sought 
in  congressional  statutes,  judicial  decisions,  executive  actions,  and 
party  practices. 

22.    The  Formal  Amending  Process 

The  Congress,  whenever  two-thirds  of  both  Houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  Constitution,  or, 
on  the  application  of  the  Legislatures  of  two-thirds  of  the  several 
States,  shall  call  a  convention  for  proposing  amendments,  which, 
in  either  case,  shall  be  valid  to  all  intents  and  purposes  as  part  of 
this  Constitution,  when  ratified  by  the  Legislatures  of  three- 
fourths  of  the  several  States,  or  by  conventions  in  three-fourths 
thereof,  as  the  one  or  the  other  mode  of  ratification  may  be  pro- 
posed by  Congress;  provided  that  no  amendment  which  may 
be  made  prior  to  the  year  one  thousand  eight  hundred  and  eight 
shall  in  any  manner  affect  the  first  and  fourth  clauses  in  the  ninth 
section  of  the  first  Article;  and  that  no  State,  without  its  con- 
sent, shall  be  deprived  of  its  equal  suffrage  in  the  Senate. 

56 


to  the 
states. 


The   Development  of  the   Federal   Constitution      57 

23.    Initiation  of  an  Amendment 

Although  the  above  article  provided  four  modes  by  which  the 
Constitution  may  be  amended,  it  does  not  describe  at  all  the 
details  of  the  procedure.  The  practice,  however,  may  be  illus- 
trated by  the  following  documents,  tracing  the  steps  in  the  initia- 
tion, ratification,  and  proclamation,  of  the  thirteenth  amendment : 

Resolved  by  the  Senate  and  House  of  Representatives  of  the   Congress 
United  States  of  America  in  Congress  assembled,  (two-thirds  of   \\^^°  ^ 
both  houses  concurring),  That  the  following  article  be  proposed   amendment 
to  the  legislatures  of  the  several  States  as  an  amendment  to  the 
constitution  of  the  United  States,  which,  when  ratified  by  three 
fourths  of  the  said  Legislatures,  shall  be  vahd,  to  all  intents  and 
purposes,  as  a  part  of    the    said  Constitution,  namely:    Article 
XIII.    Section    I.     Neither    slavery    nor    involuntary    servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or  any  place 
subject   to   their  jurisdiction.     Section   2.     Congress   shall   have 
power  to  enforce  this  article  by  appropriate  legislation. 

Schuyler  Colfax, 
Speaker  of  the  House  of  Representatives. 

H.  Hamlin, 

Vice  President  of  the  United  States, 

and  President  of  the  Senate. 

Approved,  February  i,  1865.  Abraham  Lincoln. 

[Indorsement.] 

I  certify  that  this  Resolution  did  originate  in  the  Senate. 

J.  W.  Forney, 
Secretary. 


^8  American   Government  and  Politics 

24.  Ratification  of  an  Amendment  by  a  State 

State  of  Rhode  Island,   &c. 

Whereas,  Both  Houses  of  the  Congress  of  the  United  States 
have  proposed  an  Amendment  to  the  Constitution  of  the  United 
States  in  the  words  and  figures  following,  to  wit: 

Article  XIII 

Section  i.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place  sub- 
ject to  their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 

It  is  therefore  Resolv^ed,  That  the  Legislature  of  the  State 
of  Rhode  Island  do  hereby  ratify  and  confirm  the  said  Article 
XIII  of  Amendment  to  the  said  Constitution  of  the  United  States 
and  do  hereby  assent  thereto. 

A   TRUE   COPY. 

In  testimony  whereof  I  have  hereto  set  my  hand  and  affixed 
my  seal  of  the  State  of  Rhode  Island,  this  second  day  of 
February  a.d.  1865,  the  day  of  the  adoption  of  the  said 
resolution. 

John  R.  Bartlett, 
(Seal)  Secretary  of  State. 

25.  Official  Proclamation  of  an  Amendment 
William  H.  Seward, 

Secretary  of  State  of  the  United  States, 
To  all  to  whom  these  presents  may  come.  Greeting: 

Know  Ye,  that,  whereas  the  Congress  of  the  United  States, 
on  the  ist  of  February  last,  passed  a  Resolution  which  is  in  the 
words  following,  namely: 


The  Development  of  the   Federal   Constitution      59 

"A  Resolution  submitting  to  the  Legislatures  of  the  several 
States  a  Proposition  to  amend  the  Constitution  of  the  United 
States. 

''Resolved  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  (two  thirds  of 
Ijoth  Houses  concurring),  That  the  following  Article  be  proposed 
to  the  legislatures  of  the  several  states  as  an  amendment  to  the 
constitution  of  the  United  States,  which,  when  ratified  by  three 
fourths  of  said  legislatures,  shall  be  valid,  to  all  intents  and  pur- 
poses, as  a  part  of  the  said  constitution,  namely:  — 

"Article  XHI 

"Section  i.  Neither  slavery  nor  involuntary  servitude  except 
as  a  punishment  for  crime  whereof  the  party  shall  have  been  duly 
convicted  shall  exist  within  the  United  States,  or  any  place  subject 
to  their  jurisdiction. 

"Section  2.  Congress  shall  have  authority  to  enforce  this 
article  by  appropriate  legislation." 

And,  whereas  it  appears,  from  official  documents  on  file    in   The 
this  Dcj)artment,  that  the  amendment  to  the  Constitution  of  the   nu^n"iJ^ej.^of 
United  States  proposed,  as  aforesaid,  has  been  ratified  by  the  ratifications 
legislatures  of  the  States  of  Illinois,  Rhode  Island,  Michigan, 
Maryland,  New  York,  West  Virginia,  Maine,  Kansas,  Massachu- 
setts, Pennsylvania,  Virginia,  Ohio,  Missouri,  Nevada,  Indiana, 
Louisiana,  Minnesota,  Wisconsin,  Vermont,  Tennessee,  Arkansas, 
Connecticut,  New  Hampshire,  South  Carolina,  Alabama,  North 
Cart    na,  and  Georgia;    in  all  twenty-seven  States: 

Ana,  whereas  the  whole  number  of  States  in  the  United  States 
is  thirty-six;  and  whereas  the  before  specially  named  States, 
whose  legislatures  have  ratified  the  said  proposed  amendment, 
constitute  three-fourths  of  the  whole  number  of  States  in  the 
United  States: 

Now,  therefore,  be  it  known  that  I,  William  II.  Seward,  Sec- 
retary of  State  of  the  United  States,  by  virtue  and  in  pursuance 
of  the  second  section  of  the  Act  of  Congress,  approved  the  twcn- 


received. 


6o 


American   Government  and   Politics 


The 

amendment 
is  therefore 
a  part  of 
the  Con- 
stitution. 


tieth  of  April,  eighteen  hundred  and  eighteen,  entitled  —  "  An 
Act  to  provide  for  the  publication  of  the  laws  of  the  United  States 
and  for  other  purposes,"  do,  hereby,  certify  that  the  amendment 
aforesaid  has  become  valid,  to  all  intents  and  purposes,  as  a  part 
of  the  Constitution  of  the  United  States. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  caused 
the  seal  of  the  Department  of  State  to  be  affixed. 

Done  at  the  city  of  Washington,  this  eighteenth  day  of  Decem- 
ber, in  the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty- 
five,  and  of  the  Independence  of  the  United  States  of  America 
the  ninetieth. 
[Seal]  William  H.  Seward, 

Secretary  of  State. 
Approved 

Andrew  Johnson 
Deer.  i8,  1865. 


26.    Initiation  of  an  Amendment  by  a  State 

Only  one  of  the  four  possible  modes  of  amending  the  federal 
Constitution  has  been  used  in  actual  practice;  namely,  that  of 
initiation  by  Congress  and  ratification  by  state  legislatures.  How- 
ever state  legislatures  have,  on  many  occasions,  proposed  calling  a 
convention  in  the  form  prescribed  by  the  Constitution,  and  the 
following  joint  resolution  by  the  Oklahoma  legislature  is  a  rather 
unique  device  for  urging  an  amendment  providing  for  the  popular 
election  of  senators :  — 


State  of  Oklahoma 


Senate  Joint  Resolution  No.  9.  —  Relating  to  the  calling  of 
a  convention  of  the  States  to  propose  amendments  to  the  Con- 
stitution of  the  United  States  providing  for  the  election  of 
United  States  Senators  by  direct  vote  of  the  people,  and  for  other 
purposes,  and  providing  for  the  appointment  of  a  senatorial 
election  commission  of  the  State  of  Oklahoma. 


The   Development  of  the   Federal   Constitution      6i 

Whereas  a  large  number  of  the  State  legislatures  have  at  various 
times  adopted  memorials  and  resolutions  in  favor  of  the  election 
of  United  States  Senators  by  direct  vote  of  the  people  of  the  re- 
spective States ;  and 

Whereas  the  National  House  of  Representatives  has  on  several 
different  occasions  in  recent  years  adopted  resolutions  in  favor 
of  the  proposed  change  in  the  method  of  electing  United  States 
Senators,  which  were  not  adopted  by  the  Senate:    Therefore 

Be  it  resolved  by  the  senate  and  the  house  of  representatives  of  the 
State  of  Oklahoma: 

Section  i.  That  the  legislature  of  the  State  of  Oklahoma,  in  The 
accordance  with  the  provisions  of  Article  V  of  the  Constitution  convention 
of  the  United  States,  desires  to  join  with  the  other  States  of  the 
Union  to  respectfully  request  that  a  convention  of  the  several 
States  be  called  for  the  purpose  of  proposing  amendments  to  the 
Constitution  of  the  United  States,  and  hereby  apply  to  and  request 
the  Congress  of  the  United  States  to  call  such  convention  and  to 
provide  for  submitting  to  the  several  States  the  amendments  so 
proposed  for  ratification  by  the  legislatures  thereof,  or  by  conven- 
tions therein,  as  one  or  the  other  mode  of  ratification  may  be 
proposed  by  Congress. 

Sec.  2.  That  at  said  convention  the  State  of  Oklahoma  will 
propose,  among  other  amendments,  that  section  3  of  Article  I  of 
the  Constitution  of  the  United  States  should  be  amended  to  read 
as  follov/s: 

"The  Senate  of  the  United  States  shall  be  composed  of  two  The 
Senators  from  each  State,  chosen  by  the  electors  thereof,  as  the 
governor  is  chosen,  for  six  years;  and  each  Senator  shall  have 
one  vote.  They  shall  be  divided  as  equally  as  may  be  into  three 
classes,  so  that  one-third  may  be  chosen  every  year;  and  if  va- 
cancies happen  by  resignation  or  otherwise  the  governor  may 
make  temporary  appointments  until  the  next  regular  election  in 
such  State.  No  person  shall  be  a  Senator  who  shall  not  have 
attained  the  age  of  30  years,  and  been  nine  years  a  citizen  of  the 
United  States,  and  who  shall  not  when  elected  be  an  elector  of  the 


62  American  Government  and  Politics 

State  for  which  he  shall  be  chosen.  The  Vice-President  of  the 
United  States  shall  be  President  of  the  Senate,  but  shall  have  no 
vote  unless  they  be  equally  divided.  The  Senate  shall  choose 
their  own  officers  and  also  a  President  pro  tempore  in  the  absence 
of  the  Vice-President  or  when  he  shall  exercise  the  office  of  the 
President  of  the  United  States." 
A  com-  Sec.  3.   A  legislative  commission  is  hereby  created,  to  be  com- 

"r'Tthe  °       posed  of  the  governor  and  eight  members,  to  be  appointed  by  him, 
cause.  not  more  than  four  of  whom  shall  belong  to  the  same  political 

party,  to  be  known  as  the  senatorial  direct-election  commission 
of  the  State  of  Oklahoma.  It  shall  be  the  duty  of  said  legislative 
commission  to  urge  action  by  the  legislatures  of  the  several  States 
and  by  the  Congress  of  the  United  States  to  the  end  that  a  conven- 
tion may  be  called  as  provided  in  section  i  hereof.  The  members 
of  said  commission  shall  receive  no  compensation. 

Sec.  4.  That  the  governor  of  the  State  of  Oklahoma  is  hereby 
directed  forthwith  to  transmit  certified  copies  of  this  joint  resolu- 
tion and  application  to  both  Houses  of  the  United  States  Congress, 
to  the  governor  of  each  State  in  the  Union,  and  to  each  of  our 
Representatives  and  Senators  in  Congress. 

George  W.  Bellamy, 
President  of  the  Senate. 

Wm.  H.  Murray. 
Speaker  of  the  House  of  Representatives. 

Approved  January  9,   1908. 

C.  N.  Haskell, 

Governor  of  the  State  of  Oklahoma. 

27.   Judicial  Expansion  of  the  Constitution* 

There  is  perhaps  no  better  example  of  the  way  in  which  the 
bare  letter  of  the  federal  Constitution  may  be  expanded  by  ju- 
dicial reasoning  than  the  famous  opinion  of  Chief  Justice  Mar- 
shall in  the  case  of  McCuUoch  v.  Maryland.     In  1816  Congress 


The   Development  of  the   Federal  Constitution     6^ 

authorized  the  estabHshment  of  the  Second  United  States  Bank 
and  two  years  later  Maryland  imposed  a  tax  on  the  circulating 
notes  of  its  branches  in  that  state.  Here  was  a  knotty  judicial 
problem ;  Congress  was  not  expressly  authorized  to  estabUsh  a  Fed- 
eral Bank,  and  Maryland  was  not  expressly  forbidden  to  impose 
the  tax  in  question.  The  Supreme  Court,  however,  decided  that 
the  Bank  was  constitutional  and  the  Maryland  tax  was  invalid.' 

This  government  is  acknowledged  by  all  to  be  one  of  enumer-  Powers 
ated  powers.     The  principle,  that  it  can  exercise  only  the  powers   u^tTu"^^  ^  ' 
granted  to  it,  would  seem  too  apparent  to  have  required  to  be  extent  not 
enforced  by  all  those  arguments  which  its  enlightened  friends,   ^^^"^^• 
while  it  was  depending  before  the  people,  found  it  necessary  to  urge. 
That  principle  is  now  universally  admitted.     But  the  question 
respecting  the  extent  of  the  powers  actually  granted,  is  perpetually 
arising,  and  will  probably  continue  to  arise,  as  long  as  our  system 
shall  exist. 

Among  the  enumerated  powers,  we  do  not  find  that  of  estab-  The 
Hshing  k  bank  or  creating  a  corporation.     But  there  is  no  phrase    /*"^*^*^^'°" 
in  the  instrument  which,  like  the  Articles  of  Confederation,  ex-   minutely 
eludes  incidental  or  impUed  powers;^    and  which  requires  that   °^*"'°^ 

^  ^  '  ^  enumerated 

everything  granted  shall  be  expressly  and  minutely  described,  powers. 
Even  the  loth  Amendment,  which  was  framed  for  the  purpose  of 
quieting  the  excessive  jealousies  which  had  been  excited,  omits 
the  word  "expressly,"  and  declares  only  that  the  powers  "not 
delegated  to  the  United  States,  nor  prohibited  to  the  States,  are 
reserved  to  the  States  or  to  the  people;"  thus  leaving  the  question, 
whether  the  particular  power  which  may  become  the  subject  of 
contest,  has  been  delegated  to  the  one  government,  or  prohibited 

'  In  speaking  of  the  constitutionality  of  the  first  Bank  bill,  Madison  said: 
"It  appeared  on  the  whole  that  the  power  exercised  by  the  bill  was  condemned 
by  the  silence  of  the  Constitution;  was  condemned  by  the  rule  of  interpretation 
arising  out  of  the  Constitution  .  .  .  condemned  by  the  expositions  of  the  friends 
of  the  Constitution  whilst  depending  before  the  people;  was  condemned  by  the 
apparent  intentions  of  the  parties  which  ratified  the  Constitution;  was  con- 
demned by  the  explanatory  amendments  proposed  by  the  Congress  themselves 
to  the  Constitution."     For  Jefferson's  view,  see  below,  p.  237. 

-  .See  above,  p.   25. 


64 


American   Government  and   Politics 


Petty 

restrictions 
should  not 
hinder  the 
use  of  the 
great 
powers. 


The  vast 
revenue 
operations 
should   be 
facilitated. 


to  the  other,  to  depend  on  a  fair  construction  of  the  whole  instru- 
ment. 

Although,  among  the  enumerated  powers  of  government,  we 
do  not  find  the  word  "bank,"  or  "incorporation,"  we  find  the 
great  powers  to  lay  and  collect  taxes ;  to  borrow  money ;  to  regu- 
late commerce;  to  declare  and  conduct  a  war;  and  to  raise  and 
support  armies  and  navies.  The  sword  and  the  purse,  all  the 
external  relations,  and  no  inconsiderable  portion  of  the  industry 
of  the  nation,  are  intrusted  to  its  government.  It  may,  with  great 
reason,  be  contended,  that  a  government,  intrusted  with  such 
ample  powers,  on  the  due  execution  of  which  the  happiness  and 
prosperity  of  the  nation  so  vitally  depend,  must  also  be  intrusted 
with  ample  means  for  their  execution.  The  power  being  given, 
it  is  the  interest  of  the  nation  to  facilitate  its  execution.  It  can 
never  be  their  interest,  and  cannot  be  presumed  to  have  been 
their  intention,  to  clog  and  embarrass  its  execution  by  withholding 
the  most  appropriate  means. 

Throughout  this  vast  republic,  from  the  St.  Croix  to  the  Gulf 
of  Mexico,  from  the  x^tlantic  to  the  Pacific,  revenue  is  to  be  col- 
lected and  expended,  armies  are  to  be  marched  and  supported. 
The  exigencies  of  the  nation  may  require,  that  the  treasure  raised 
in  the  North  should  be  transported  to  the  South,  that  raised  in 
the  East  conveyed  to  the  West,  or  that  this  order  should  be  re- 
versed. Is  that  construction  of  the  Constitution  preferred  which 
would  render  these  operations  difficult,  hazardous,  and  expensive  ? 
Can  we  adopt  that  construction  (unless  the  words  imperiously 
require  it)  which  would  impute  to  the  framers  of  that  instrument, 
when  granting  these  powers  for  the  public  good,  the  intention  of 
impeding  their  exercise  by  withholding  a  choice  of  means?  If, 
indeed,  such  be  the  mandate  of  the  Constitution,  we  have  only  to 
obey ;  but  that  instrument  does  not  profess  to  enumerate  the  means 
by  which  the  powers  it  confers  may  be  executed ;  nor  does  it  pro- 
hibit the  creation  of  a  corporation,  if  the  existence  of  such  a  being 
be  essential  to  the  beneficial  exercise  of  those  powers.  It  is,  then, 
the  subject  of  fair  inquiry,  how  far  such  means  may  be  employed. 


The   Development  of  the   Federal   Constitution     6^ 

We  think  the  sound  construction  of  the  Constitution  must  allow  Appropriate 
to  the  national  legislature  that  discretion,  with  respect  to  the  means   bT  usecTfor 
by  which  the  powers  it  confers  are  to  be  carried  into  execution,   legitimate 
which  will  enable  that  body  to  perform  the  high  duties  assigned  ^^  ^' 
to  it,  in  the  manner  most  beneficial  to  the  people.     Let  the  end 
be  legitimate,  let  it  be  within  the  scope  of  the  Constitution,  and 
all  means  which  are  appropriate,  which  are  plainly  adapted  to 
that  end,  which  are  not  prohibited,  but  consist  with    the  letter 
and  spirit  of  the  Constitution,  are  constitutional. 

That  a  corporation  must  be  considered  as  a  means  not   less   Reasons 
usual,   not  of  higher  dignity,   not   more  requiring   a  particular  Constitution 
specification    than   other   means,    has    been   sufficiently   proved,    did  not 
If  we  look  to  the  origin  of  corporations,  to  the  manner  in  which   ^rporations 
they  have  been  framed  in  that  government  from  which  we  have 
derived  most  of  our  legal  principles  and  ideas,  or  the  uses  to  which 
they  have  been  applied,  we  find  no  reason  to  suppose  that  a  con- 
stitution,  omitting,   and  wisely   omitting,   to   enumerate   all   the 
means  for  carrying  into  execution  the  great  powers  vested  in 
government,  ought  to  have  specified  this.     Had  it  been  intended 
to  grant  this  power  as  one  which  should  be  distinct  and  independent, 
to  be  exercised  in  any  case  whatever,  it  would  have  found  a  place 
among  the  enumerated  powers  of  the  government.     But  being 
considered  merely  as  a  means,  to  be  employed  only  for  the  purpose 
of  carrying  into  execution  the  given  powers,  there  could  be  no 
motive  for  particularly  mentioning  it. 

If  a  corporation  may  be  employed  indiscriminately  with  other  A  banking 
means  to  carry  into  execution  the  powers  of  the  government,  no   ^corporation 
particular  reason  can  be  assigned  for  excluding  the  use  of  a  bank,    used  as 
if  required  for  its  fiscal  operations.     To  use  one,  must  be  within   '''''     ^^, 

.  .  .     .  .  'i"y  other 

the  discretion  of  Congress,  if  it  be  an  appropriate  mode  of  exccut-  corporation, 
ing  the  powers  of  government.  That  it  is  a  convenient,  a  useful, 
and  essential  instrument  in  the  prosecution  of  its  fiscal  operations, 
is  not  now  a  subject  of  controversy.  All  those  who  have  been 
concerned  in  the  administration  of  our  finances,  have  concurred 
in  representing  its  importance  and  necessity;    and  so  strongly 


66 


American   Government  and  Politics 


have  they  been  felt,  that  statesmen  of  the  first  class,  whose  previous 
opinions  against  it  had  been  confirmed  by  every  circumstance 
which  can  fix  the  human  judgment,  have  yielded  those  opinions 
to  the  exigencies  of  the  nation.  Under  the  confederation.  Congress 
justifying  the  measure  by  its  necessity,  transcended,  perhaps,  its 
powers  to  obtain  the  advantage  of  a  bank;  and  our  own  legisla- 
tion attests  the  universal  conviction  of  the  utility  of  this  measure. 
Were  its  necessity  less  apparent,  none  can  deny  its  being  an 
appropriate  measure;  and  if  it  is,  the  degree  of  its  necessity,  as 
has  been  very  justly  observed,  is  to  be  discussed  in  another  place. 
Where  the  law  is  not  prohibited,  and  is  really  calculated  to  effect 
any  of  the  objects  intrusted  to  the  government,  to  undertake  here 
to  inquire  into  the  degree  of  its  necessity,  would  be  to  pass  the 
line  which  circumscribes  the  judicial  department,  and  to  tread  on 
legislative  ground.  This  court  disclaims  all  pretensions  to  such 
a  power. 


28.    The  Congressional  Expansion  of  the  Constitution  to  Meet 

New  Needs 

Congress  has  never  allowed  constitutional  quibbles  to  stand  in 
the  way  of  important  legislation  in  behalf  of  national  interests. 
The  way  in  which  it  has  brushed  aside  narrow  interpretations  is 
eloquently  described  by  Mr.  Jones  in  the  following  speech  made  in 
the  House  of  Representatives  in  1902,  in  favor  of  appropriations 
for  irrigation :  — 

We  are  met  at  the  threshold  of  the  discussion  of  this  bill  with 
the  same  objection  that  has  met  every  other  great  question  in  the 
past;  with  the  same  obstacle  that  has  been  in  the  way  of  every  up- 
ward and  onward  growth  of  our  nation  since  its  foundation ;  with 
the  same  reason  that  would  dwarf,  throttle  and  destroy  our 
national  life  and  progress  —  it  is  unconstitutional.  How  often 
have  we  heard  that  cry !  What  great  measure  has  ever  been  pre- 
sented for  our  country's  welfare  that  has  not  been  met  with  this 
objection?  The  pathway  of  our  national  progress  to  glory  and 
greatness  is  strewn  with  the  fragments  of  constitutional  objections. 


The  Development  of  the   Federal  Constitution      67 

A  protective  tariff,  under  which  our  home  industries  have  been   Measures 
fostered  and  developed  until  we  are  able  to  supply  our  own  markets   ^,ggj^  called 
and  also  reach  out  for  the  markets  of  the  world ;  under  which  the   unconsti- 
farmer  has  secured  a  market  for  his  produce  at  fair  and  remu-     "*'°"^  • 
nerative  prices ;    under  which  the  manufacturer  has  been  able  to 
sell  his  products  and  develop  and  broaden  his  industries,  and 
under  which  the  laborer  of  the  country  has  had  his  wages  main- 
tained at  a  scale  nowhere  equalled,  was  unconstitutional.     The 
national  banking  system  of  this  country  was  pronounced  uncon- 
stitutional.    The    inauguration    of    the    system   of   internal   im- 
provements that  has  done  so  much  for  the  building  up  of  commerce 
and  the  country  was  unconstitutional. 

The  limitation  placed  on  the  extension  of  slavery  was  uncon- 
stitutional. The  salvation  and  preservation  of  the  Union  itself 
was  declared  to  have  been  done  through  unconstitutional  means. 
The  issuance  and  redemption  of  the  greenbacks  was  unconsti- 
tutional. The  throttling  of  polygamy  at  the  very  threshold  of  the 
national  capital  was  unconstitutional.  The  growth  of  the  nation 
in  the  acquisition  of  Hawaii,  Porto  Rico,  and  the  Philippines  was 
unconstitutional.  But,  notwithstanding  all  this,  the  nation  still 
lives,  the  Constitution  still  lives,  and  the  zenith  of  our  nation's 
glory  has  not  yet  been  reached. 

The  Constitution,  instead  of  being  an  instrument  to  strangle   The  Con- 
and  destroy  national  growth  and  development,  is  the  very  soul   designed  to 
and  life  of  the  nation  in  expanding  and  broadening  as  the  neces-   promote 
sities  of  civiHsation  and  development  demand.     The  extent  of  "rowth 
our  greatness  has  not  yet  been  measured.     With  relentless  power 
these  constitutional  quibbles  have  been  and  will  be  brushed  aside, 
that  our  nation  may  grow  and  develop  into  the  great  Republic, 
the  admiration  and  hope  of  mankind,  the  exemplar  and  the  ideal 
of  all  liberty-loving  people.     That  this  objection  to  the  bill  under 
consideration  will  meet  the  same  fate  we  do  not  doubt,  and  should 
the  question  ever  come  up  for  consideration  before  the  Supreme 
Court,  there  can  be  no  question  but  that  its  decision  will  add  life 
and  not  death  to  the  Constitution.  .  .  . 


68 


American   Government  and   Politics 


The  main  purpose  of  this  bill  is  to  reclaim  worthless  property 
of  the  Government  and  make  it  valuable.  The  Government  has 
constructed  levees  along  the  Mississippi  River.  Why?  Osten- 
sibly to  aid  commerce ;  primarily  to  protect  farms  and  lands  from 
destruction  by  overflow.  Not  public  lands,  either,  but  i)rivate 
lands.  If  the  Government  can  do  this,  why  can  it  not  turn  water 
onto  its  dry  and  worthless  lands  to  make  them  valuable  and  pro- 
ductive? The  Government  has  granted  swamp  lands  to  the 
States  upon  the  condition  that  they  will  reclaim  them.  If  it  can 
do  this,  can  it  not  provide  for  the  irrigation  and  watering  of  its 
own  lands  in  its  own  way  and  by  the  exercise  of  its  own  power  ? 

The  Government  has  granted  millions  of  its  public  domains 
directly  to  railroad  companies  in  order  that  roads  might  be  built 
across  the  continent.  Some  there  be  who  condemn  this  policy 
and  yet  no  one  can  cross  this  continent  and  not  realise  the  im- 
measurable benefit  that  has  been  brought  to  the  nation  by  the 
construction  of  these  roads,  and  no  one  can  see  the  almost  insur- 
mountable difficulties  encountered  and  overcome  and  not  appre- 
ciate that  aid  of  this  kind  was  necessary  to  secure  the  early  con- 
struction of  these  roads.  What  was  the  object  of  these  grants? 
Not  for  the  benefit  of  the  corporation  or  the  individual  but  for  the 
benefit  of  the  nation,  for  the  growth  and  development  of  the  people, 
and  for  the  settlement  and  development  of  the  public  domain  of 
the  country.  If  the  Government  can  do  this,  if  it  can  turn  this 
property  over  to  private  individuals  in  order  that  its  public  do- 
main may  be  settled,  can  it  not  take  the  proceeds  of  the  sale  of  its 
public  domain  and  use  them  in  reclaiming  these  public  lands? 

There  are  those  who  advocate  the  granting  of  a  subsidy  for  the 
building  up  of  the  merchant  marine.  Some  of  those  who  advo- 
cate such  a  measure  are  opposed  to  this  bill.  I  am  in  favor  of  a 
subsidy  if  that  will  place  the  American  flag  upon  the  seas,  but  if 
we  can  use  money  of  the  Government  for  such  a  purpose  —  and  I 
believe  we  can  —  surely  the  Government  can  use  its  money  for 
reclaiming  its  own  lands.  If  it  can  improve  property  of  others, 
it  certainly  can  improve  its  own.     If  it  can  pay  others  for  im- 


The   Development  of  the   Federal   Constitution     69 

proving  its  own  property,  it  certainly  can  improve  this  property 
itself. 

What  is  the   Government?     Is  it  not  the  instrument  of  the   TJie  Con- 
people  ?     The  people  are  not  for  the  Government,  as  some  seem   instl-ument^ 
to  think,  but  the  Government  is  for  the  people,  and  I  believe  that  of  the 
under  our  Constitution  any  measure  that  results  in  great  good  to   ^^°^  ^' 
a  great  number  of  our  people  and  tends  to  make  the  people  hap- 
pier,  more   prosperous,   and   more   contented   will   find   warrant 
under  the  Constitution.     If  we  can  expend  miUions  in  aid  of  com- 
merce, we  certainly  can  expend  a  few  millions  to  create  commerce. 

29.    The  Constitution  and  Executive  Practice 

The  "dark  continent"  of  presidential  war  power  was  not  ex-   The  war 
plored  until  the  Civil  War,  when  Lincoln,  without  express  warrant   po^^^ 
from  the  Constitution,  blockaded  several  Southern  ports,  author-   pj-gsi^ent 
ized  the  suspension  of  the  writ  of  habeas  corpus  at  different  places, 
and  finally  destroyed  slavery  in  many  states,  although  that  insti- 
tution within    commonwealths    in  times  of    peace  was    entirely 
beyond  the  reach  of  both  Congress  and  the  President.     In  the  fol- 
lowing letter  written  in  1864,  Lincoln  describes  the  process  of 
reasoning  by  which   he  arrived  at  the  conclusion  that  he  had 
constitutional  warrant  for  this  assumption  of  power:  — 

I  did  understand,  however,  that  my  oath  to  preserve   the  Con-   The  oath 

11  r  1  •!•  •  1  -11  r    to  preserve 

stitutiun  to  the  best  of  my  ability,  imposed  on  me  the  duty  of    ^-^^^  (^^^_ 
preserving  by  every  indispensable  means,  that  government  —  that   stitutioa 
nation  of  which  that  Constitution  was  the  organic  law.     Was  it  |,"p  \^^^  ^j 
possible  to  lose  the  nation  and   yet  preserve  the   Constitution  ?   indispcu- 
By  general  law,  life  and  limb  must  be  protected;    yet  often  a 
limb  must  be  amputated  to  save  a  life,  but  a  life  is  never  wisely 
given  to  save  a  limb.     I  felt  that  measures,  otherwise  unconsti- 
tutional, might  become  lawful  by  becoming  indispensable  to  the 
preservation  of  the  Constitution  through  the  preservation  of  the 
nation.     Right  or  wrong,  I  assumed  this  ground  and  now  avow 
it.     I  could  not  feel  that,  to  the  best  of  my  ability,  I  had  even  tried 
to  preserve  the  Constitution,  if,  to  [^reserve  slavery,  or  any  minor 


sable 
means. 


70 


American  Government  and  Politics 


matter,  I  should  permit  the  wreck  of  government,  country,  and 
Constitution    altogether. 

When,  early  in  the  war,  General  Fremont  attempted  military 
emancipation,  I  forbade  it,  because  I  did  not  then  think  it  an  in- 
dispensable necessity.  When,  a  little  later,  General  Cameron, 
then  Secretary  of  War,  suggested  arming  the  blacks,  I  objected 
because  I  did  not  then  think  il  an  indispensable  necessity.  When, 
still  later,  General  Hunter  attempted  military  emancipation,  I  again 
forbade  it,  because  I  did  not  yet  think  the  indispensable  necessity 
had  come.  When,  in  March  and  ]May  and  July,  1862,  I  made 
earnest  and  successive  appeals  to  the  border  States  to  favor  com- 
pensated emancipation,  I  beheved  the  indispensable  necessity  for 
military  emancipation  and  arming  the  blacks  would  come,  unless 
averted  by  that  measure.  They  declined  the  proposition;  and  I 
was,  in  my  best  judgment,  driven  to  the  alternative  of  either  sur- 
rendering the  Union  and  with  it  the  Constitution,  or  of  laying 
strong  hand  upon  the  colored  element.     I  chose  the  latter. 

30.    The  Third  Term  Doctrine 

The  principle  that  no  President  should  accept  a  third  term  is 
as  well  established  in  practice  as  if  it  were  embodied  in  the 
Constitution  itself.  Jefferson  thus  comments  on  the  origin  of  the 
principle :  — 


Jefferson 
on  the 
origin 
of  the 
doctrine. 


INIy  opinion  originally  was  that  the  President  should  have  been 
elected  for  seven  years,  and  forever  ineligible  afterwards.  I  have 
since  become  sensible  that  seven  years  is  too  long  to  be  irremov- 
able, and  that  there  should  be  a  peaceable  way  of  withdrawing 
a  man  in  midway  who  is  doing  wrong.  The  service  for  eight 
years,  with  a  power  to  remove  at  the  end  of  the  first  four,  comes 
nearly  to  my  principle  as  corrected  by  experience,  and  it  is  in 
adherence  to  that,  that  I  determine  to  withdraw  at  the  end  of 
my  second  term.  The  danger  is  that  the  indulgence  and  at- 
tachments of  the  people  will  keep  a  man  in  the  chair  after  he 
becomes  a  dotard,  that  reelection  through  life  shall  become  habitual, 


The   Development  of  the  Federal   Constitution     71 

and  election  for  life  follow  that.  General  Washington  set  the 
example  of  voluntary  retirement  after  eight  years.  I  shall  follow 
it.  And  a  few  more  precedents  will  oppose  the  obstacle  of  habit 
to  any  one  after  awhile  who  shall  endeavor  to  extend  his  term. 
Perhaps  it  may  beget  a  disposition  to  establish  it  by  an  amend- 
ment of  the  Constitution.  .  .  . 

In  1875  when  the  friends  of  President  Grant  were  demanding 
a  third  term  for  him,  the  House  of  Representatives  on  December 
15  passed  this  resolution  commending  the  precedent  set  by  Wash- 
ington and  Jefferson  and  followed  by  their  successors :  — 

Resolved,  That,  in  the  opinion  of  this  House,  the  precedent   The  House 
established  by  Washington  and  other  Presidents  of  the  United   sentat^es" 
States,  in  retiring  from  the  presidential  office  after  their  second   commends 
term,  has  become,  by  universal  concurrence,  a  part  of  our  repub-    ,^    . 
lican  system  of  government,  and  that  any  departure  from  this  time- 
honored  custom  would  be  unwise,  unpatriotic,  and  fraught  with 
peril  to  our  free  institutions. 


CHAPTER  V 


THE   DEVELOPMENT   OF    STATE    CONSTITUTIONS 

The  de-  The  extent  to  which  the  social  and  poUtical  institutions  of  the 

velopment       American  people  have  departed  from  the  models  set  by  the  states- 

^  f.f  ^.         men  of  the  eighteenth  century  is  nowhere  more  clearly  revealed 

constitutions       .  .         ,  i        ,  r  .        .  t         i 

llustratesour   than  in  the  development  of  state  constitutions.     In  them  the 

political  establishment  of  political  democracy  is  recorded,  and  numerous 

progress.         legal  rules  for  meeting  practical  problems  are  laid  down.     In 

short,  they  are,  as  Air.  Bryce  points  out,  "a  mine  of  instruction 

for  the  natural  history  of  democratic  communities."^ 

31.    Early  State  Constitutions 

The  belief  of  our  early  constitution-makers  that  stable  govern- 
ment could  be  founded  only  on  the  rule  of  the  propertied  classes, 
especially  the  freeholders,  is  fully  demonstrated  in  the  first  state 
constitutions,  the  character  of  which  may  be  fairly  illustrated 
by  these  extracts  from  the  fundamental  laws  of  Georgia  and 
Maryland :  — 


Qualifica- 
tions for 
senators 


Extract  from  the  Georgia  Constitution  of  lySg 

Article  I 

Section  3.  No  person  shall  be  a  member  of  the  senate  who 
shall  not  have  attained  to  the  age  of  twenty-eight  years,  and  who 
shall  not  have  been  nine  years  an  inhabitant  of  the  United  States, 
and  three  years  a  citizen  of  this  State ;  and  shall  be  an  inhabit- 
ant of  that  county  for  which  he  shall  be  elected,  and  have  resided 
therein  six  months  immediately  preceding  his  election,  and  shall 

'  For  an  extract  illustrating  the  process  of  amending  state  constitutions,  see 
below,  p.  411. 

72 


The   Development  of  State   Constitutions       73 

be  possessed  in  his  own  right  of  two  hundred  and  fifty  acres  of 
land,  or  some  property  to  the  amount  of  two  hundred  and  fifty 
pounds. 

Section  7.  No  person  shall  be  a  member  of  the  house  of  repre-  and 
sentatives  who  shall  not  have  attained  to  the  age  of  twenty-one  sentatives, 
years,  and  have  been  seven  years  a  citizen  of  the  United  States, 
and  two  years  an  inhabitant  of  this  State;  and  shall  be  an  in- 
habitant of  that  county  for  which  he  shall  be  elected,  and  have 
resided  therein  three  months  immediately  preceding  the  election; 
and  shall  be  possessed  in  his  own  right  of  two  hundred  acres  of 
land,  or  other  property  to  the  amount  of  one  hundred  and  fifty 
pounds. 

Article  II 
Sec.  2.    The  house  of  representatives  shall,  on  the  second  day  The 

•        ,        r  1    •  1  election 

of  their  makmg  a  house,  ni  the  first,  and  m  every  second  year  ^f  ^^e 
thereafter,  vote  by  ballot  for  three  persons ;  and  shall  make  a  list  governor, 
containing  the  names  of  the  persons  voted  for,  and  of  the  number 
of  votes  for  each  person ;  which  list  the  speaker  shall  sign  in  the 
presence  of  the  house,  and  deliver  it  in  person  to  the  senate ;  and 
the  senate  shall,  on  the  same  day,  proceed,  by  ballot,  to  elect  one 
of  the  three  persons  having  the  highest  number  of  votes;  and  the 
person  having  a  majority  of  the  votes  of  the  senators  present  shall 
be  the  governor. 

Sec.  -i.   No  person  shall  be  ehgible  to  the  office  of  governor  '^^e 

.  governor  s 

who  shall  not  have  been  a  citizen  of  the  United  States  twelve  years,    qualifica- 
and  an  inhabitant  of  this  State  six  years,  and  who  hath  not  at-   tions. 
tained  to  the  age  of  thirty  years,  and  who  does  not  possess  five 
hundred  acres  of  land,  in  his  own  right,  within  this  State,  and 
other  species  of  property  to  the  amount  of  one  thousand  pounds 
sterling. 

Extract  from  the  Maryland  Constitution  of  1776 
II.   That  the  House  of  Delegates  shall  be  chosen  in  the  follow-   Elections   to 

°  .  the    lower 

ing  manner:    All  freemen,  above  twenty-one  years  of  age,  having   house. 


74 


American  Government  and   Politics 


The 

governor 
chosen   by 
joint 
ballot. 


The 

governor's 

council. 


a  free-hold  of  fifty  acres  of  land,  in  the  county  in  which  they  offer 
to  vote,  and  residing  therein  —  and  all  freemen,  having  property 
in  this  State  above  the  value  of  thirty  pounds  current  money,  ani 
having  resided  in  the  county,  in  which  they  offer  to  vote,  one  whole 
year  next  preceding  the  election,  shall  have  a  right  of  suffrage,  in 
the  election  of  Delegates  for  such  county:  and  all  freemen,  so 
qualified,  shall,  on  the  first  Monday  of  October,  seventeen  hun- 
dred and  seventy-seven,  and  on  the  same  day  in  every  year  there- 
after, assemble  in  the  counties,  in  which  they  are  respectively 
qualified  to  vote,  at  the  courthouse,  in  the  said  counties;  or  at 
such  other  place  as  the  Legislature  shall  direct;  and,  when  as- 
sembled, they  shall  proceed  to  elect,  viva  voce,  four  Delegates, 
for  their  respective  counties,  of  the  most  wise,  sensible,  and  dis- 
creet of  the  people,  residents  in  the  county  where  they  are  to  be 
chosen,  one  whole  year  next  preceding  the  election,  above  twenty- 
one  years  of  age,  and  having,  in  the  State,  real  or  personal  prop- 
erty above  the  value  of  five  hundred  pounds  current  money;  and 
upon  the  final  casting  of  the  polls,  the  four  persons  who  shall 
appear  to  have  the  greatest  number  of  legal  votes  shall  be  declared 
and  returned  duly  elected  for  their  respective  counties. 

XXV.  That  a  person  of  wisdom,  experience  and  virtue,  shall 
be  chosen  Governor,  on  the  second  Monday  of  November,  seven- 
teen hundred  and  seventy-seven,  and  on  the  second  Monday  in 
every  year  forever  thereafter,  by  the  joint  ballot  of  both  Houses 
(to  be  taken  in  each  House  respectively)  deposited  in  a  confer- 
ence room;  the  boxes  to  be  examined  by  a  joint  committee  of 
both  Houses,  and  the  numbers  severally  reported,  that  the  ap- 
pointment may  be  entered;  which  mode  of  taking  the  joint  ballot 
of  both  Houses  shall  be  adopted  in  all  cases.  .  .  . 

XXVI.  That  the  Senators  and  Delegates,  on  the  second  Tues- 
day of  November,  1777,  and  annually  on  the  second  Tuesday  of 
November  forever  thereafter,  elect  by  joint  ballot  (in  the  same 
manner  as  Senators  are  directed  to  be  chosen)  five  of  the  most 
sensible,  discreet,  and  experienced  men,  above  twenty-five  years 
of  age,  residents  in  the  State  above  three  years  next  preceding  the 


The  Development  of  State   Constitutions       75 

election,  and  having  therein  a  freehold  of  lands  and  tenements, 
above  the  value  of  one  thousand  pounds  current  money,  to  be  the 
Council  to  the  Governor,  whose  proceedings  shall  always  be  en- 
tered on  record,  to  any  part  whereof  any  member  may  enter  his 
dissent;  and  their  advice,  if  so  required  by  the  Governor,  or  any 
member  of  the  Council,  shall  be  given  in  writing,  and  signed  by 
the  members  giving  the  same  respectively;  which  proceedings  of 
the  Council  shall  be  laid  before  the  Senate,  or  House  of  Delegates, 
when  called  for  by  them  or  either  of  them. 

32.    American  Rotten  Boroughs* 

It  is  one  of  the  cardinal  principles  of  modern  democracies  that   The  doctrine 
representatives  should  be  distributed  fairly  among  districts  sub-   '^f  appor- 
stantially  equal   in   population.     This   principle    has   now   been     '°"'"^" 

^  J         L  LI  ^     L  I  _  according  to 

widely  adopted,  although  there  are  still  marked  exceptions,  not-  population, 
ably  in  Connecticut,  Rhode  Island,  and  New  Hampshire,'  but  in 
the  beginning  of  our  political  history  it  was  not  recognized  as  a 
controlling  theory  in  the  apportionment  of  representatives  among 
the  various  state  districts.  In  fact,  there  were  in  a  number  of 
states  conditions  very  similar  to  those  prevailing  in  England  before 
the  Reform  Bill  of  1832,  and  they  were  the  subject  of  constant 
criticism  on  the  part  of  democratic  writers  like  Niles,  from  whose 
Weekly  Register  (1821)  this  extract  is  taken:  — 

What  hypocrites  are  we,  to  censure  and  rail  at  England,  for  her   Old  Sarum 
manner  of  electing  members  of  the  house  of  commons,  while  scv-   '',  "^.^  .  , 

duplicated 


eral  of  our  states  have  their  legislative  power  constituted  on  the   in  the 

Unitcc 
States 


same  principle,  and  which,  in  time,  may  become  the  same  in   Umtcc 


practice,  by  changes  in  the  state  of  population,  without  changes 
in  their  political  constitutions.  Old  Sarum,  which  now  has  not 
one  resident  elector,  though  it  sends  two  members  to  parliament, 
once  was  a  place  of  some  consequence  —  it  has  gone  to  decay  — ■ 
a  single  house  remains  to  point  the  spot  whereon  the  borough 
stands.  Thus  also,  certain  counties  that  I  could  name,  in  certain 
parts  of  the  United  States,  are  passing  to  decay  —  large  tracts  of 

'  Dcaley,  Our  Stale  Constitutions  (1907),  Chap.  XI. 


76 


American   Government  and   Politics 


Party 

squabbles  in 
Maryland 
prevent 
reform. 


Conditions 
worse  in 
Virginia. 


country  that  were  cultivated  a  century  ago,  are  now  covered  with 
new  growths  of  stunted  timber,  the  haunt  of  the  deer  and  other 
timid  animals  of  the  forest.  The  people  have  mostly  departed 
for  new  and  better  lands  —  yet  the  power  of  representation  re- 
mains ;  and  it  may  easily  happen,  if  this  course  of  things  is  con- 
tinued, that  one  freeholder  may  possess  the  soil  of  several  counties, 
and,  like  an  English  lord,  elect  4,  6,  8,  or  10  of  his  creatures  to  a 
state  legislature,  to  make  laws  for  freemen. 

Three  or  four  of  the  old  states  are  governed  on  this  outrageous 
plan  —  Maryland  and  Virginia,  and  especially  the  latter,  stand 
conspicuous  for  such  violations  of  everything  that  is  honest,  every- 
thing that  is  just.  In  Maryland,  the  nice  balance  of  pohtical 
parties  (according  to  the  present  manner  in  which  power  is  de- 
rived), and  the  dirty  struggles  between  the  ins  and  outs,  seem  to 
swallow  up  the  reason  of  the  matter,  and  prevent  a  reformation 
which  every  man  admits  ought  to  take  place:  the  sense  of  honor 
and  a  love  of  justice  is  sacrificed  to  a  possession  of  party  power  — 
to  put  into  or  put  out  of  office  a  few  insignificant  individuals;  — 
for  this  (say  what  one  can)  is  the  real  amount  of  the  present 
political  contests  in  Maryland:  neither  party  is  disposed  fairly 
to  bring  about  a  representation  of  the  people,  or  even  a  representa- 
tion of  property  —  a  representation  of  anything  else  than  certain 
districts  of  country,  no  matter  whether  inhabited  by  men  or  opos- 
sums. Some,  no  doubt,  will  be  angry  with  these  rude  expres- 
sions, but  "the  mischief  is"  that  they  are  true,  that  both  parties 
have  had  the  power  and  yet  suffered  the  outrage  to  exist  unre- 
garded. 

In  Virginia,  though  the  principle  is  the  same,  the  result  is  much 
more  objectionable  than  in  Maryland  on  account  of  the  greater 
changes  that  have  taken  place  in  the  relative  population  and 
wealth  of  counties;  and  so  it  n<nv  is,  that  one  man  in  certain 
of  the  counties,  has  as  much  weight  in  representation  as  twenty 
or  thirty,  in  another;  and  so  also  in  regard  to  wealth  and  extent. 
The  thing  was  started  wrong;  and  it  seems  as  if  the  people  of 
Virginia  thought  there  was  a  merit  in  continuing  in  the  wrong. 


The   Development  of  State  Constitutions       77 

Yet  they  have  taken  a  lead  in  our  pohtical  affairs;  are  the  most 
strenuous  supporters  of  state  rights,  and  seem  most  to  regard  the 
sovereignty  of  the  people.  There  is  nothing  that  can  be  urged  in 
favor  of  perseverance  in  a  practice  so  insulting  to  the  dignity  of 
human  nature  —  a  practice  as  intolerant  as  any  of  the  acts  passed 
by  the  parliament  of  Great  Britain,  which  united  America  resisted 
• —  "taxation  without  representation,"  which  should  be  resisted  by 
every  honorable  man. 

But  Maryland  and  Virginia,  though  they  agree  in  principle  as  General 
to  the  formation  of  their  legislative  and  executive  authorities,  are  ^j^^  regard 
on  the  opposite  extremes  as  to  the  way  in  which  that  principle  to  the 
shall  be  brought  into  action.  In  the  former,  every  man  may  vote 
who  has  (or  says  that  he  has)  resided  in  the  state  or  county  such 
a  length  of  time,  if  a  citizen;  and,  as  in  Baltimore,  where  the 
places  for  voting  are  adjacent,  he  may  vote  half  a  dozen  times  or 
more  (if  he  is  determined  to  carry  his  point),  as  many  have  done; 
for  we  have  nothing  that  partakes  of  even  the  character  of  a  reg- 
istration of  voters  —  not  anything  to  serve  as  a  check  upon  the 
unprincipled;  and  he  who  can  gain  the  most  of  such  to  his  side 
has  the  best  chance  of  being  elected,  when  a  brisk  opposition 
exists  and  the  passions  are  excited.  On  the  other  hand,  none  but 
freeholders  vote  in  Virginia,  and  none  but  freeholders  ought  to 
fight  or  pay  taxes.  But,  be  the  requisition  to  possess  the  right  of 
suffrage  what  it  may,  it  should  be  so  guarded  that  it  cannot  be 
abused  —  and  the  voter,  in  one  county  or  district,  ought  to  have 
the  same  influence  as  a  voter  in  another.  And  even  if  a  regard  to 
population  is  waived,  and  respect  is  had  to  wealth  only,  —  the 
counties  should  be  represented  according  to  the  several  amounts 
which  they  pay  into  the  state  treasury,  either  by  direct  or  indirect 
taxation.  "EquaUty  is  equity,  conformity  is  justice,"  —  and 
there  cannot  be  either  equity  or  justice,  when  neither  population  or 
wealth,  severally  or  jointly,  are  regarded  in  a  delegation  of  the 
power  to  make  laws.  All  laws  so  made  are  repugnant  to  all  the 
principles  that  appertain  to  the  rights  of  man. 


7 8  American   Government  and   Politics 


^^.   An  Appeal  for  the  Right  to  Vole 

Although  the  Virginia  Bill  of  Rights  of  1776  declared  that  "all 
power  is  vested  in,  and  consequently  derived  from,  the  people," 
the  Constitution  framed  at  the  same  time  restricted  the  suffrage 
to  freeholders,  and  when  a  new  constitutional  convention  met  in 
1829,  a  lengthy  memorial  from  non-freeholders  asking  for  the 
ballot  was  laid  before  the  body.  This  document  illustrates  the 
spirit  of  the  wider  democracy  that  sprang  up  early  in  the  nine- 
teenth century. 

The  Memorial  of  the  Non-Freeholders  of  the  City  of  Richmond 
respectfully  addressed  to  the  Convention,  now  assembled  to  delib- 
erate on  amendments  to  the  State  Constitution,  1829. 
How  non-  Your  memorialists,  as  their  designation  imports,  belong  to  that 

are  shut  class  of  citizens,  who,  not  having  the  good  fortune  to  possess  a 

out  of  all         certain  portion  of  land,  are,  for  that  cause  only,  debarred  from  the 
po^i  ica  enjoyment  of  the  right  of  suffrage.     Experience  has  but  too  clearly 

evinced,  what,  indeed,  reason  had  always  foretold,  by  how  frail  a 
tenure  they  hold  every  other  right,  who  are  denied  this,  the  highest 
prerogative  of  freemen.  The  want  of  it  has  afforded  both  the 
pretext  and  the  means  of  excluding  the  entire  class,  to  which  your 
memorialists  belong,  from  all  participation  in  the  recent  election 
of  the  body  they  now  respectfully  address.  Comprising  a  very 
large  part,  probably  a  majority  of  male  citizens  of  mature  age, 
they  have  been  passed  by,  hke  aliens  or  slaves,  as  if  destitute  of 
interest,  or  unworthy  of  a  voice,  in  measures  involving  their  future 
political  destiny ;  whilst  the  freeholders,  sole  possessors,  under  the 
existing  Constitution,  of  the  elective  franchise,  have,  upon  the 
strength  of  that  possession  alone,  asserted  and  maintained  in 
themselves,  the  exclusive  power  of  new-modelling  the  fundamental 
laws  of  the  State :  in  other  words,  have  seized  upon  the  sovereign 
authority.  .  .  . 

To  that  privilege  [of  the  suffrage],  they  respectfully  contend, 
they  are  entitled  equally  with  its  present  possessors.  Many  are 
bold  enough  to  deny  their  title.     None  can  show  a  better.     It 


The  Development  of  State  Constitutions       79 

rests  upon  no  subtle  or  abstruse  reasoning;    but  upon  grounds   Grounds 
simple  in  their  character,  intelligible  to  the  plainest  capacity,  and   demand 
such  as  appeal  to  the  heart,  as  well  as  the  understanding,  of  all   for  the 
who  comprehend  and  duly  appreciate  the  principles  of  free  Gov-   ^"  ^^^^' 
ernment.     Among  the  doctrines  inculcated  in  the  great  charter 
handed  down  to  us,  as  a  declaration  of  the  rights  pertaining  to  the 
good  people  of  Virginia  and  their  posterity,  "as  the  basis  and 
foundation  of  Government,"  we  are  taught, 

"That  all  men  are  by  nature  equally  free  and  independent,  and  have    Extract 
certain  inherent  rights,  of  which,  when  they  enter  into  a  state  of  society,    ^™'^.  ^^^ 
they  cannot,  by  any  compact,  deprive  or  divest  their  posterity:   namely,    V^'^ginia 
the  enjoyment  of  life  and  liberty,  with  the  means  of  acquiring  and  pes-    j;'.  , 
sessing  property,  and  pursuing  and  obtaining  happiness  and  safety.  ,  '^  ,f 

That  all  power  is  vested  in,  and  consequently  derived  from,  the  people. 

That  a  majority  of  the  community  hath  an  indubitable,  unalienable, 
and  indefeasible  right  to  reform,  alter  or  abolish  the  Government. 

That  no  man,  nor  set  of  men,  are  entitled  to  exclusive  or  separate 
emoluments  or  privileges,  but  in  consideration  of  public  services. 

That  all  men,  having  sufficient  evidence  of  permanent  common  in- 
terest with,  and  attachment  to  the  community,  have  a  right  of  suffrage, 
and  cannot  be  taxed,  or  deprived  of  their  property,  without  due  consent, 
or  that  of  their  representative,  nor  bound  by  any  law,  to  which  they 
have  not,  in  like  manner,  assented,  for  the  public  good." 

How  do  the  principles  thus  proclaimed,  accord  with  the  exist-   Restricted 
ing  regulation  of  suffrage?     A  regulation,  which,  instead  of  the   contmTi 
equality  nature  ordains,   creates  an  odious  distinction  between   to  the 
members  of  the  same  community;  robs  of  all  share,  in  the  enact-   of'^^f^^ft 
ment  of  the  laws,  a  large  portion  of  the  citizens,  bound  by  them, 
and  whose  blood  and  treasure  are  pledged  to  maintain  them,  and 
vests  in  a  favored  class,  not  in  consideration  of  their  public  serv- 
ices, but  of  their  private  possessions,  the  highest  of  all  privileges; 
one  which,  as  is  now  in  flagrant  proof,  if  it  does  not  constitute,  at 
least  is  held  practically  to  confer,  absolute  sovereignty. 

34.   An  Argument  against  Popular  Suffrage  (i82g)  * 

When  the  proposition  to  establish  white  male  suffrage  came 
before  the  Virginia  convention,  Mr.  Trezvant  opposed  the  inno- 


8o 


American   Government  and  Politics 


A  radical 
change 
incurs  a  risk 
of  great 
evils. 


Most 

people  are 
satisfied 
with 

things  as 
they  are. 


The  extent 
of  the 
change   to 
be  effected 
by  the  new 
law. 


vation  with  the  following  arguments,  and  in  his  position  he  was 
sustained  by  a  large  number  of  his  colleagues.  The  radical 
proposal  was  therefore  defeated,  but  a  concession  was  made  to  the 
democratic  element  by  a  slight  extension  of  the  suffrage. 

What  is  the  question  under  consideration?  The  object  of  the 
amendment  is  to  abolish  the  present  modification  of  the  Kight  of 
Suffrage,  and  to  substitute  in  its  place,  one  entirely  new  to  us. 
When  a  people  undertake  to  make  a  change  in  their  political  insti- 
tutions, affecting  the  foundation  of  Government,  it  behoves  them 
to  proceed  with  the  utmost  caution  and  circumspection.  We 
should  recollect  that  we  are  about  to  introduce  an  experiment 
which  is  to  operate  upon  the  affections,  prejudices,  and  long- 
established  habits  of  the  community,  and  the  consequences  can- 
not be  distinctly  foreseen  or  foretold.  A  numerous  population, 
falling  not  much  short  of  a  million,  cannot  at  once  throw  off  their 
old  usages  and  customs,  and  accommodate  themselves  to  an 
entirely  new  order  of  things,  radically  different  from  that  under 
which  they  have  lived  in  peace  and  tranquillity,  without  incurring 
the  risk  of  many  and  great  evils. 

This  Government  has  existed  for  more  than  fifty  years,  and 
under  it,  the  people  have  enjoyed  happiness  and  contentment. 
There  are,  it  is  true,  occasional  clamors  arising  from  local  causes 
and  prejudices,  and  not  from  any  real  defects  in  the  form  of  Gov- 
ernment ;  and  I  hope  this  amendment  will  not  be  adopted  to  allay 
such  complaints.  In  that  part  of  the  State  in  which  I  reside  I 
have  not  heard  of  any  serious  complaint  touching  the  Right  of 
Suffrage.  The  people  there,  in  this  respect,  at  least,  are  satis- 
fied ;  why  then  adopt  this  new  qualification  of  the  Right  of  Suffrage, 
which  in  my  poor  opinion,  would  put  to  hazard  the  best  interests  of 
the  country,  and  even  endanger  the  liberties  of  the  people? 

We  are  called  upon  to  substitute  for  the  Freehold  Suffrage,  that 
which,  if  it  be  not  Universal  Suffrage,  falls  but  little  short  of  it. 
It  is  proposed  that  those  who  are  twenty-one  years  of  age,  who 
bear  arms,  and  have  resided  twelve  months  in  the  county  in  which 
they  propose  to  vote,  should  have  this  right,  and  the  adoption  of 


The   Development  of  State   Constitutions       8i 


the  principle  amounts  in  effect,  to  what  I  call  Universal  Suffrage. 
I  was  told  by  one  gentleman,  (to  the  correctness  of  whose  statistics 
I  do  not,  however,  feel  myself  bound  to  subscribe),  that  the  adop- 
tion of  this  measure  would  add  to  the  number  of  voters  in  the  State 
more  than  60,000,  the  present  number  being  somewhat  more  than 
40,000.  Thus,  the  power  of  the  Government  is  to  be  transferred 
from  the  hands  of  the  40,000,  who  have  the  deepest  interest  at 
stake,  to  the  60,000,  who  have  comparatively  but  little  interest. 

It  is  no  idle  chimera  cf  the  brain,  that  the  possession  of  land 
furnishes  the  strongest  evidence  of  permanent,  common  interest 
with,  and  attachment  to,  the  community.  Much  has  been  already 
said  by  gentlemen  on  both  sides,  demonstrating  the  powerful  in- 
fluence of  local  attachment  upon  the  conduct  of  man,  and  I  cannot 
be  made  to  comprehend  how  that  passion  could  be  more  effectually 
brought  into  action,  than  by  a  consciousness  of  the  fact,  that  he  is 
the  owner  of  the  spot  which  he  can  emphatically  call  his  home.  It 
is  upon  this  foundation  I  wish  to  place  the  Right  of  Suffrage. 
This  is  the  best  general  standard  which  can  be  resorted  to  for  the 
purpose  of  determining  whether  the  persons  to  be  invested  with 
the  Right  of  Suffrage  are  such  persons  as  could  be,  consistently 
with  the  safety  and  well-being  of  the  community,  entrusted  with 
the  exercise  of  that  right. 


The 

possession 
of  land 
the  best 
evidence  of 
permanent 
interest 
in  the 
community. 


35.    The  Doctrine  of  Rotation  in  Office 

Among  the  first  principles  of  Jacksonian  democracy  was  the 
doctrine  that  all  public  officers  should  be  elected  for  short 
terms  and  their  reeligibility  carefully  restricted,  so  that  "an 
office-holding  aristocracy"  could  not  be  created.  In  the  Penn- 
sylvania constitutional  convention  of  1837,  Mr.  Earle  summed  up 
the  arguments  in  favor  of  a  short  tenure  of  office. 


What  is  the  reason  that  we  place  any  limitation  at  all  u[)on  the  I^ong 

term  of  office?     I  would  ask  for  reasons  why  we  should  ever  turn  u^fjtg  ^-^^ 

a  good  man  out  of  office  ?     Is  it  because  the  officer  has  accumulated  officer  for 

wealth,  and  has  arrived  at  a  period  of  life,  when  retirement  and  ^'^    "  ""^^ 


82 


American   Government  and  Politics 


Almost 
every  one  is 
qualified 
for  office. 


Office 

holders,    if 

reeligible, 

create 

political 

machines. 


repose  have  become  necessary?  Not  at  all.  The  reason  is,  that 
long  continuance  in  office  unfits  a  man  for  the  discharge  of  its 
duties,  by  rendering  him  arbitrary  and  aristocratic,  and  tends  to 
beget,  first  life  office,  and  then  hereditary  office,  which  leads  to 
the  destruction  of  free  government.  This  is  the  reason  why  the 
principle  of  rotation  in  office  has  been  adopted  by  republicans; 
and  the  moment  it  is  abandoned,  life  office  must  follow. 

It  might  be  urged  though,  as  I  think,  without  much  force  — 
that  the  office  of  Governor  and  of  President  ought  to  be  left  with- 
out limitation,  because,  in  cases  of  great  public  emergency,  it 
might  be  expedient  and  necessary  to  continue  in  office,  some  in- 
cumbent, beyond  the  limited  term,  on  account  of  his  peculiar  fit- 
ness for  the  crisis.  But  in  a  small  county  clerkship,  which  could 
be  just  as  well  filled  by  any  one  of  five  hundred  men  in  the  coun- 
try, as  the  incumbent  himself,  it  is  preposterous  to  say  that  the 
public  necessities  require  the  retention  of  an  officer.  It  is  absurd 
to  say,  that  the  public  service  requires  an  unlimited  tenure  of 
offices,  which  any  merchant's  clerk  could,  in  three  days'  time,  be 
prepared  to  fill,  as  well  as  your  oldest  officers;  for  the  easy  and 
simple  duties  of  which  no  previous  study,  and  no  great  learning, 
or  experience,  are  required  —  and  for  the  discharge  of  which  the 
officer  generally  is  just  about  as  well  fit,  on  the  first  day  of  his 
service,  as  on  the  last.  Then,  there  is  no  reason  to  be  found,  in 
the  nature  of  the  service,  which  would  render  an  exception  from 
the  principle  of  rotation  in  office,  applicable  to  these  clerks,  reg- 
isters,  &c. 

The  only  way  to  secure  a  quiet  and  easy  application  of  the  prin- 
ciple is  to  establish  a  rule  making  the  officer  ineligible  after  a  fixed 
term.  Without  a  rule  of  this  kind,  the  officers,  who  are  always  on 
the  alert  and  bound  together  by  a  common  tie  of  interest,  will 
combine  to  ensure  their  re-election.  They  get  up  a  convention, 
the  delegates  to  which  are  selected,  and  pledged  in  the  dark,  and, 
when  they  meet,  they  of  course  nominate  and  recommend  to  the 
support  of  the  people,  those  officers  whose  creatures  they  are. 
The  people  do  not  know  the  contrivance,  and  they  are  easily  en- 


The  Development  of  State  Constitutions       83 

trapped  by  it.  The  office-holders  are  leagued,  active,  and  or- 
ganised, and  have  possession  of  all  the  avenues  to  public  opinion, 
and  of  all  the  machinery  of  their  party.  But  by  making  the  rule 
invariable,  we  can  defeat  this  party  organisation,  and  prevent  an 
official  monopoly  and  aristocracy. 

In  the  republic  of  Geneva,  the  same  men  were  so  often  re-elected   Frequent 
to  office,  that  the  government  degenerated  into  an  aristocracy  of   ^jjj  ^^^  j^ 
life  office.     The  people  found  it  more  convenient  to  continue  them   a  life 
for  life  and  save  the  trouble  of  re-election.     The  next  step  was 
that  these  hfe  officers,  voted  that  they  had  power,  for  the  pubHc 
benefit,   to  elect  their  own  successors.     Of  course  each  parent 
thought  his  own  children  best  qualified  for  the  succession,  and 
chose  them  accordingly;    and  thus  the  government  became  an 
hereditary  aristocracy. 

Washington,  Jefferson,  Franklin  and  Jackson  —  men  of  great   Dis- 
minds  and  most  devoted  patriotism  —  as  all  will  agree,  whatever  Americans 
may  be  the  difference  of  opinion  concerning  their  policy,  have   have 
given  their  opinions  most  distinctly  in  favor  of  short  terms  of  office.     ^°Jf 
In  the  Constitution  of  1776,  which  was  drawn  up  by  Franklin  and   tenures, 
approved  by  the  patriots  of  the  revolution,   this  principle  was 
established  and  carried  out.     The  eligibility  of  the  members  of  the 
Supreme  Executive  Council  was  then  limited ;   and  the  Constitu- 
tion gives  this  reason  for  it:    "By  this  mode  of  election  and  con- 
tinual rotation,  by  its  powers,  more  men  will  be  trained  to  pubhc 
business;    there  will  in  every  subsequent  year  be  found  in  the 
council  a  number  of  persons  acquainted  with  the  proceedings  of 
the  foregoing  years,  whereby  the  business  will  be  more  consistently 
conducted,  and  the  danger  of  establishing  an  inconvenient  aris- 
tocracy will  be  effectually  prevented."     Many  other  officers  besides 
the  councillors  were  also  limited  and  for  this  reason.     General 
Washington,  having  been  twice  elected  to  the  highest  office  in  the 
gift  of  a  free  and  grateful  people,  set  the  example  of  retiring  at  the 
end  of  the  second  term,  though  there  was  no  limitation  fixed  by 
the  Constitution,  to  the  eligibility  of  the  President. 

Mr.  Jefferson  in  his  answer  to  a  committee  of  his  fellow  citizens 


84  American   Government  and   Politics 

asking  him  to  consent  to  serve  in  the  office  of  President  for  a  third 
term,  insists  upon  the  pohcy  and  necessity  of  short  terms  of  office, 
in  a  republican  Government;  confirms  the  evidence  of  history 
as  to  the  tendency  of  free  Governments  to  degenerate  into  aris- 
tocracy through  the  influence  of  life  tenures;  and  declares  that, 
in  laying  down  his  charge,  he  is  influenced  by  a  repugnance  to 
doing  anything  which  would  tend  to  impair  the  vital  principle  of 
short  terms  and  frequent  elections.  General  Jackson  recom- 
mended an  alteration  of  the  Constitution,  with  a  view  to  limit  the 
eligibility  of  the  President  to  one  term.  He  said  that  the  public 
interest,  generally,  suffered  more  injury,  from  the  long  continu- 
ance of  power  in  the  same  hands,  than  it  was  benefited  by  the 
experience  of  the  individual.  An  officer,  as  experience  proves, 
grows  worse  instead  of  better,  by  long  continuance  in  office.  The 
principles  which  I  have  referred  to,  as  having  been  established 
and  supported  by  the  great  founders  of  our  free  institutions,  are 
the  principles  of  republicanism,  and  I  ask  if  they  are  not  still  the 
doctrines  of  Pennsylvania  ? 


36.    Restrictions  on  Special  Legislation  * 

The  early  state  legislatures  were  practically  unrestricted  in  their 
lawmaking  power  except  by  the  general  terms  of  the  Bill  of 
Rights,  and  they  soon  began  to  abuse  their  authority  by  passing 
special  laws  granting  favors  to  corporations,  discriminating  among 
cities  and  localities,  and  exempting  private  persons  from  the 
penalties  of  general  statutes.  The  sale  of  this  special  legislation 
became  one  of  the  most  fruitful  sources  of  boss  rule  and  political 
corruption,  and  to  remedy  the  intolerable  abuses  the  device  was 
adopted  of  placing  in  the  state  constitution  a  series  of  clauses  for- 
bidding special  legislation  in  general  and  particular.  The  whole 
question  was  thoroughly  discussed  in  the  Pennsylvania  state  con- 
stitutional convention  in  1873,  and  during  the  debates  the  follow- 
ing speech  was  made  against  special  legislation :  — 

Now,  sir,  nothing  will  strike  the  people  of  this  State  with  as 
much  force  as  this  question  of  barring  special  legislation;    the 


The   Development  of  State  Constitutions       85 

people  feel  more  interest  in  this  one  subject  than  any  other  which  The 
this  Convention  will  be  called  upon  to  decide.  I  would  there-  principle 
fore  say  that  equal  privileges  for  all,  exclusive  privileges  for  none,  of  equal 
should  be  the  sentiment  of  every  citizen  of  this  Commonwealth,  for^^ll^^^ 
If  we  depart  from  this  principle  we  are  at  sea  without  a  chart  or 
compass.  A  general  law,  granting  privileges  to  incorporate  com- 
panies, is  made  for  the  benefit  of  the  people  of  the  State ;  the  privi- 
leges granted  thereby  may  be  enjoyed  by  all  the  people  of  every 
locality  in  the  State.  There  can  be  no  special  monopoly  created 
by  pursuing  this  course.  No  company  can  be  organized  under 
general  laws  which  can  occupy  any  particular  locality  or  carry 
on  any  particular  kind  of  business  to  the  exclusion  of  all  other 
companies  for  the  same  purpose.  I  am  in  favor  of  adopting  a 
principle  into  our  Constitution  which  will  permit  all  people  to  com- 
bine with  the  same  privileges.  I  would  not  give  to  the  Legisla- 
ture, through  this  Constitution,  power  to  grant  privileges  to 
which  all  persons  are  not  equally  entitled  under  general  law.  I 
would  place  a  restriction  on  the  legislature  in  this  Commonwealth, 
and  say  to  it,  thus  far  and  no  farther,  so  that  if  one  man  points  his 
finger  at  you,  and  says,  "I  have  a  right  and  privilege  under  such  a 
law,"  you  can  answer  him,  "so  have  I."  There  would  seem  to  be 
a  kind  of  general  fairness  in  such  a  principle  as  this.  But  when 
you  permit  through  a  Constitution,  a  legislative  body  to  assemble, 
and  allow  them  —  with  hardly  a  restraint  —  to  pass  any  act  they 
may  choose,  to  incorporate  any  company,  to  establish  any  special 
charter,  you  at  once  tolerate  arrogant  legislation.  I  would,  there- 
fore, restrict  special  legislation  by  placing  around  it  a  proper 
safeguard,  like  that  which  this  section  suggests,  and  provide  also 
that  all  laws  of  a  general  nature  shall  have  a  uniform  operation 
throughout  the  State. 

We  have  the  Constitution  of  a  State  l^efore  us  which  seems  to   The 
checkmate  many  of  the  abuses  growing  out  of  local  legislation.     I   of'i"i^nois 
refer  to  the  Constitution  of  the  State  of  Illinois.     Her  revised  Con- 
stitution of  1870,  we  find  under  article  four  and  section  twenty-two 
entitlgd  special  legislation,  prohibited  some  twenty  or  more  spc- 


86 


American   Government  and  Politics 


Some 
figures 
on  special 
lesislation. 


cific  subjects  that  cannot  be  bartered  and  traded  away  at  the  mere 
beck  or  nod  of  some  unscrupulous  lobbyist,  who  lounges  about  the 
State  Capitol,  whose  business  it  is  to  manipulate  the  foul  work  of 
their  masters.  If  we  adopt  this  section  as  reported  in  this  Con- 
stitution, we  shall  receive  the  thanks  of  the  many  whose  eyes  are 
now  upon  us.  We  may  rest  assured,  unless  we  meet  the  e.xpec- 
tation  of  the  people  of  this  Commonwealth  in  some  way  of  this 
kind,  that  the  work  we  are  doing  here  will  be  repudiated  by  them, 
and  with  the  advantages  they  have,  they  will  not  be  slow  in  mak- 
ing up  their  minds,  and  will  be  prepared  to  give  their  solemn  ver- 
dict against  our  work. 

In  looking  over  the  acts  which  the  Legislature  has  passed  for  the 
past  few  years,  say  commencing  with  1866  and  ending  with  1872, 
we  find  the  followin";  results: 


In  1 866,  general  laws  passed  were  50 
In  1867,  general  laws  passed  were  86 
In  1868,  general  laws  passed  were  73 
In  1869,  general  laws  passed  were  77 
In  1870,  general  laws  passed  were  54 
In  187 1,  general  laws  passed  were  81 
In  1872,  general  laws  passed  were  54 


special  laws  were  1,096 
special  laws  were  1,392 
special  laws  were  1,150 
special  laws  were  1,276 
special  laws  were  1,276 
special  laws  were  1,353 
special  laws  were  1,232 


So  you  see  that  in  seven  years  there  were  passed  475  general 
laws  and  8755  private  acts.  The  number  of  acts  which  the  present 
Legislature  of  1873  have  passed  are  many,  and  I  am  told  will 
duplicate  the  number  of  the  acts  of  any  one  former  year.  This  is 
undoubtedly  correct,  and  is  but  another  proof  of  the  necessity  for 
this  Convention  of  adopting  this  section  with  all  its  paragraphs 
complete.  From  1866  to  187 1  the  legislators  passed  for  railroads, 
and  granted  tliem  corporate  privileges,  some  four  hundred  and 
fifty  special  acts,  bearing  on  railroads  alone.  Those  were,  per- 
haps, not  all  the  laws  that  were  passed  in  which  railroads  were 
directly  or  indirectly  interested. 

Mr.  Chairman,  what  a  fearful  commentary  is  this  on  the 
abuses  of  special  legislation  !     By  a  restrictive  section  in  this  Con- 


private 
corporations. 


The   Development  of  State   Constitutions       87 

stitution,  the  best  and  largest  interests  of  a  free  and  industrious   Public 
people  like  ours,  in  this  State,  would  be  protected.     Without  it   granted 
we  have  not  much  faith  in  the  ultimate  results,  for  as  we  are  car-   away  to 
ried  forward  by  the  political  maelstrom,  we  shall  lind  that  our 
political  rights  will  be  swallowed  up  by  granting  special  privi- 
leges to  soulless  corporations.     Now,  sir,  what  sort  of  justice,  I 
ask,  can  there  be  that  will  allow  the  law-making  power  in  this 
State  to  change,  at  each  and  every  session  of  the  Legislature,  some 
act,  because  a  few  favored  citizens  desire  it;   this  ought  not  to  be 
tolerated   for  one  moment.     Necessary  legislation  is  greatly  re- 
tarded, the  expenses  to  the  Commonwealth  are  greatly  enlarged, 
the  assumption  of  such  rights  degrades  the  dignity  of  any  legis- 
lative body,  and  withall  impairs  the  efficiency  of  legislation  for 
good  to  the  whole  people.     If  you  restrict  any  by  law,  restrict  all 
under  like  circumstances. 

37.   Recent  Tendencies  in  Constitutional  Development 

Among  the  novel  features  of  the  new  state  constitutions  are 
modifications  in  the  traditional  modes  of  Anglo-Saxon  procedure, 
such  as  indictment  by  grand  jury  and  trial  by  jury;  strict  limi- 
tations on  the  rights  and  privileges  of  corporations;  and  provi- 
sions in  favor  of  the  working  class.  In  this  respect  the  recent 
constitution  of  Oklahoma  deserves  careful  study  because  its 
framers  have  embodied  in  it  practically  all  the  newer  inventions 
of  American  politics,  among  which  the  following  are  the  most 
striking:  — 

The  privilege  of  the  writ  of  habeas  corpus  shall  never  be  sus-    Habeas 
pended  by  the  authorities  of  this  State. 

No  person  shall  be  prosecuted  criminally  in  courts  of  record  ^^^  -.^^ 
for  felony  or  misdemeanor  otherwise  than  by  presentment  or  in-  trial, 
dictment  or  by  information.  No  person  shall  be  prosecuted  for  a 
felony  by  information  without  having  had  a  preliminary  examina- 
tion before  an  examining  magistrate,  or  having  waived  such  pre- 
liminary examination.  Prosecutions  may  be  instituted  in  courts 
not  of  record  upon  a  duly  verified  complaint. 


88 


American   Government  and   Politics 


Injunctions. 


Publicity 
for  cor- 
porations. 


A  grand  jury  shall  be  composed  of  twelve  men,  any  nine  of 
whom  concurring  may  find  an  indictment  or  true  bill.  A  grand 
jury  shall  be  convened  upon  the  order  of  a  judge  of  a  court  having 
the  power  to  try  and  determine  felonies,  upon  his  own  motion ;  or 
such  grand  jury  shall  be  ordered  by  such  judge  upon  the  filing  of 
a  petition  therefor  signed  by  one  hundred  resident  taxpayers  of 
the  county;  when  so  assembled  such  grand  jury  shall  have  power 
to  investigate  and  return  indictments  for  all  character  and  grades 
of  crime,  and  such  other  powers  as  the  Legislature  may  prescribe. 
Provided,  That  the  Legislature  may  make  the  calling  of  a  grand 
jury  compulsory. 

The  right  of  trial  by  jury  shall  be  and  remain  inviolate,  and  a 
jury  for  the  trial  of  civil  and  criminal  cases  in  courts  of  record, 
other  than  county  courts,  shall  consist  of  twelve  men;  but,  in 
county  courts  and  courts  not  of  record,  a  jury  shall  consist  of  six 
men.  This  section  shall  not  be  so  construed  as  to  prevent  limita- 
tions being  fixed  by  law  upon  the  right  of  appeal  from  judgments 
of  courts  not  of  record  in  civil  cases  concerning  causes  of  action 
involving  less  than  twenty  dollars.  In  civil  cases,  and  in  crimi- 
nal cases  less  than  felonies,  three-fourths  of  the  whole  number  of 
jurors  concurring  shall  have  power  to  render  a  verdict.  In  all  other 
cases  the  entire  number  of  jurors  must  concur  to  render  a  verdict. 

The  Legislature  shall  pass  laws  defining  contempts  and  regulat- 
ing the  proceedings  and  punishment  in  matters  of  contempt: 
Provided,  That  any  person  accused  of  violating  or  disobeying, 
when  not  in  the  presence  or  hearing  of  the  court,  or  judge  sitting 
as  such,  any  order  of  injunction,  or  restraint,  made  or  entered  by 
any  court  or  judge  of  the  State  shall,  before  penalty  or  punishment 
is  imposed,  be  entitled  to  a  trial  by  jury  as  to  the  guilt  or  innocence 
of  the  accused.  In  no  case  shall  a  penalty  or  punishment  be  im- 
posed for  contempt,  until  an  opportunity  to  be  heard  is  given. 

Any  person  having  knowledge  or  possession  of  facts  that  tend 
to  establish  the  guilt  of  any  other  person  or  corporation  charged 
with  an  offense  against  the  laws  of  the  State,  shall  not  be  excused 
from  giving  testimony  or  producing  evidence,  when  legally  called 


The   Development  of  State   Constitutions        89 

upon  so  to  do,  on  the  ground  that  it  may  tend  to  incriminate  him 
under  the  laws  of  the  State;  but  no  person  shall  be  prosecuted 
or  subjected  to  any  penalty  or  forfeiture  for  or  on  account  of  any 
transaction,  matter,  or  thing  concerning  which  he  may  so  testify 
or  produce  evidence. 

The  records,  books,  and  files  of  all  corporations  shall  be,  at  all 
times,  liable  and  subject  to  the  full  visitorial  and  inquisitorial 
powers  of  the  State,  notwithstanding  the  immunities  and  privi- 
leges in  this  Bill  of  Rights  secured  to  the  persons,  inhabitants, 
and  citizens  thereof. 

The  right  of  the  State  to  engage  in  any  occupation  or  business 
for  public  purposes  shall  not  be  denied  nor  prohibited,  except  that 
the  State  shall  not  engage  in  agriculture  for  any  other  than  edu- 
cational and  scientific  purposes  and  for  the  support  of  its  penal, 
charitable,  and  educational  institutions. 

Perpetuities  and  monopolies  are  contrary  to  the  genius  of  a  free   Monopolies, 
government,  and  shall  never  be  allowed,  nor  shall  the  law  of  primo- 
geniture or  entailments  ever  be  in  force  in  this  State. 

No  private  corporation  shall  be  created  nor  foreign  corporation 
licensed  to  conduct  business  in  the  State,  except  by  general  law. 

No  corporation  shall  issue  stock  except  for  money,  labor  done,  Stock 
or  property  actually  received  to  the  amount  of  the  par  value  thereof, 
and  all  fictitious  increase  of  stock  or  indebtedness  shall  be  void, 
and  the  Legislature  shall  prescribe  the  necessary  regulations  to 
prevent  the  issue  of  fictitious  stock  or  indebtedness.  The  stock 
and  bonded  indebtedness  of  corporations  shall  not  be  increased 
except  in  pursuance  of  general  law,  nor  without  the  consent  of 
the  persons  holding  the  larger  amount  in  value  of  the  stock  first 
obtained  at  a  meeting  to  be  held  after  thirty  days'  notice  given  in 
pursuance  of  law. 

No  corporation  organized  or  doing  business  in  this  State  shall 
be  permitted  to  influence  elections  or  official  duty  by  contributions 
of  money  or  anything  of  value. 

No  corporation  chartered  or  licensed  to  do  business  in  this  State   Mergers, 
shall  own,  hold,  or  control,  in  any  manner  whatever,  the  stock  of 


9° 


American  Government  and  Politics 


Books  of 
corporations 
to  be  open. 


Monopolies 
and  dis- 
crimination. 


any  competitive  corporation  or  corporations  engaged  in  the  same 
kind  of  business,  in  or  out  of  the  Sta^te,  except  such  stock  as  may 
be  pledged  in  good  faith  to  secure  bona  fide  indebtedness  ac- 
quired upon  foreclosure,  execution  sale,  or  otherwise  for  the 
satisfaction  of  debt.  In  all  cases  where  any  corporation  acquires 
stock  in  any  other  corporation,  as  herein  provided,  it  shall  be 
required  to  dispose  of  the  same  within  twelve  months  from  the 
date  of  acquisition;  and  during  the  period  of  its  ownership  of 
such  stock  it  shall  have  no  right  to  participate  in  the  control  of 
such  corporation,  except  when  permitted  by  order  of  the  Corpora- 
tion Commission.  No  trust  company,  or  bank  or  banking  com- 
pany shall  own,  hold,  or  control,  in  any  manner  whatever,  the 
stock  of  any  other  trust  company,  or  bank  or  banking  company, 
except  such  stock  as  may  be  pledged  in  good  faith  to  secure  bona 
fide  indebtedness,  acquired  upon  foreclosure,  execution  sale,  or 
otherwise  for  the  satisfaction  of  debt;  and  such  stock  shall  be 
disposed  of  in  the  time  and  manner  hereinbefore  provided. 

No  corporation,  foreign  or  domestic,  shall  be  permitted  to  do 
business  in  this  State  without  first  filing  in  the  office  of  the  Cor- 
poration Commission  a  list  of  its  stockholders,  officers,  and  di- 
rectors, with  the  residence  and  postoffice  address  of,  and  the  amount 
of  stock  held  by  each.  And  every  foreign  corporation  shall,  before 
being  licensed  to  do  business  in  the  State,  designate  an  agent  resid- 
ing in  the  State ;  and  service  of  summons  or  legal  notice  may  be 
had  on  such  designated  agent  and  such  other  agents  as  now  are  or 
may  hereafter  be  provided  for  by  law.  Suit  may  be  maintained 
against  a  foreign  corporation  in  the  county  where  an  agent  of  such 
corporation  may  be  found,  or  in  the  county  of  the  residence  of 
plaintifif,  or  in  the  county  where  the  cause  of  action  may  arise. 

Until  otherwise  provided  by  law,  no  person,  firm,  association, 
or  corporation  engaged  in  the  production,  manufacture,  distribu- 
tion, or  sale  of  any  commodity  of  general  use,  shall,  for  the  pur- 
pose of  creating  a  monopoly  or  destroying  competition  in  trade, 
discriminate  between  different  persons,  associations,  or  corpora- 
tions, or  different  sections,  communities,  or  cities  of  the  State,  by 


The  Development  of  State  Constitutions       91 

selling  such  commodity  at  a  lower  rate  in  one  section,  community, 
or  city  than  in  another,  after  making  due  allowance  for  the  differ- 
ence, if  any,  in  the  grade,  quantity,  or  quality,  and  in  the  actual 
cost  of  transportation  from  the  point  of  production  or  manufacture. 

Eight  hours  shall  constitute  a  day's  work  in  all  cases  of  employ-   Provisions 
ment  by  and  on  behalf  of  the  State  or  any  county  or  municipality,   of  labor. 

The  contracting  of  convict  labor  is  hereby  prohibited. 

The  employment  of  children,  under  the  age  of  fifteen  years,  in 
any  occupation,  injurious  to  health  or  morals  or  especially  hazard- 
ous to  life  or  limb,  is  hereby  prohibited. 

Boys  under  the  age  of  sixteen  years,  and  women  and  girls,  shall 
not  be  employed,  underground,  in  the  operation  of  mines;  and, 
except  in  cases  of  emergency,  eight  hours  shall  constitute  a  day's 
work  underground  in  all  mines  of  the  State. 

The  Legislature  shall  pass  laws  to  protect  the  health  and  safety 
of  employees  in  factories,  in  mines,  and  on  railroads. 

The  defense  of  contributory  negligence  or  of  assumption  of  risk 
shall,  in  all  cases  whatsoever,  be  a  question  of  fact,  and  shall,  at 
all  times,  be  left  to  the  jury. 

The  right  of  action  to  recover  damages  for  injuries  resulting 
in  death  shall  never  be  abrogated,  and  the  amount  recoverable 
shall  not  be  subject  to  any  statutory  limitation. 

Any  provision  of  a  contract,  express  or  implied,  made  by  any 
person,  by  which  any  of  the  benefits  of  this  Constitution,  is  sought 
to  be  waived,  shall  be  null  and  void. 


CHAPTER    VI 


THE   EVOLUTION   OF   POLITICAL   ISSUES   IN   THE   UNITED   STATES 


The  intimate 
character 
of  govern- 
ment. 


A  GOVERNMENT  IS  not  an  abstract  thing  —  a  set  of  rules  and 
regulations.  It  is  at  bottom  a  determinate  number  of  persons 
set  off  from  the  commimity  at  large  and  authorized  to  discharge 
certain  public  duties.  Under  the  modern  system  of  party  rule, 
the  general  character  and  policy  of  the  government  at  any  given 
time  depend  upon  the  interests  and  ideals  of  the  political  party 
which  placed  the  dominant  and  directing  officials  in  power. 
"For  practical  purposes,"  says  Judge  Cooley,  "the  Constitution 
is  that  which  the  government  in  its  several  departments  and  the 
people  in  the  performance  of  their  duties  as  citizens  recognize 
and  respect  as  such;  and  nothing  else."  Thus  it  happens  that 
a  description  of  American  government  which  leaves  out  of  account 
party  issues,  methods,  and  organization,  fails  to  reveal  both  the 
realities  of  governmental  practice  and  the  opportunities  of  the 
citizen  to  take  part  in  the  direction  and  control  of  his  government. 


Political 
doctrines 
of  ruling 
classes  in 
Europe. 


38.    Federalists  and  Jeffersonians 

Washington,  in  common  with  many  of  his  contemporaries, 
deplored  the  introduction  of  party  spirit  into  American  politics, 
but  the  new  Constitution  had  hardly  gone  into  effect  before  the 
voters  and  leaders  began  to  differ  about  practical  measures  and 
theoretical  doctrines ;  and  over  these  issues  they  divided  into  two 
groups,  Federalists  and  Jeffersonians.  The  general  views  of  the 
two  parties  are  thus  characterized  by  Jefferson :  — 

The  fact  is,  that  at  the  formation  of  our  government,  many 
had  formed  their  political  opinions  on  European  writings  and  prac- 
tices, believing  the  experience  of  old  countries,  and  especially 
of  England,  abusive  as  it  was,  to  be  a  safer  guide  than  mere 
theory.     The  doctrines  of  Europe  were,  that  men  in  numerous 

92 


Evolution  of  Political   Issues  in   United  States     93 

associations  cannot  be  restrained  within  the  limits  of  order  and 
justice,  but  by  forces  physical  and  moral,  wielded  over  them  by 
authorities  independent  of  their  will.  Hence  their  organisation 
of  kings,  hereditary  nobles,  and  priests.  Still  further  to  constrain 
the  brute  force  of  the  people,  they  deem  it  necessary  to  keep  them 
down  by  hard  labor,  poverty  and  ignorance,  and  to  take  from  them, 
as  from  bees,  so  much  of  their  earnings,  as  that  unremitting  labor 
shall  be  necessary  to  obtain  a  sufificient  surplus  barely  to  sustain 
a  scanty  and  miserable  life.  And  these  earnings  they  apply  to 
maintain  their  privileged  orders  in  splendor  and  idleness,  to  fas- 
cinate the  eyes  of  the  people,  and  excite  in  them  an  humble  adora- 
tion and  submission,  as  to  an  order  of  superior  beings. 

Although  few  among  us  had  gone  all  these  lengths  of  opinion,  yet  The  policy 
many  had  advanced,  some  more,  some  less,  on  the  way.  And  in  alists. 
the  convention  which  formed  our  government,  they  endeavored  to 
draw  the  cords  of  power  as  tight  as  they  could  obtain  them,  to  lessen 
the  dependence  of  the  general  functionaries  on  their  constituents, 
to  subject  to  them  those  of  the  States,  and  to  weaken  their  means 
of  maintaining  the  steady  equilibrium  which  the  majority  of  the 
convention  had  deemed  salutary  for  both  branches,  general  and 
local.  To  recover,  therefore,  in  practice  the  powers  which  the 
nation  had  refused,  and  to  warp  to  their  own  wishes  those  actually 
given,  was  the  steady  object  of  the  Federal  party. 

Ours,  on  the  contrary,  was  to  maintain  the  will  of  the  majority   Jeffersoman 
of  the  convention,  and  of  the  people  themselves.     We  believed,    j^  the  wis- 
with  them,  that  man  was  a  rational  animal,  endowed  by  nature   dom  and 
with  rights,  and  with  an  innate  sense  of  justice;  and  that  he  could    pgopi^ 
be  restrained  from  wrong  and  protected  in  right,  by  moderate 
powers,  confided  to  persons  of  his  own  choice  and  held  to  their 
duties  by  dependence  on  his  own  will.     We  believed  that  the  com- 
plicated organization   of  kings,  nobles,  and   priests  was  not  the 
wisest  nor  best  to  effect  the  happiness  of  associated   man;    tjiat 
wisdom  and,virtue  were  not  hereditary;  that  the  trappings  of  such 
a  machinery  consumed  by  their  expense  those  earnings  of  industry 
they  were  meant  to  protect,  and  by  the  inequalities  they  produced 


94 


American  Government  and  Politics 


exposed  liberty  to  sufiferance.  We  believed  that  men,  enjoying 
in  ease  and  security  the  full  fruits  of  their  own  industry,  enlisted 
by  all  their  interests  on  the  side  of  law  and  order,  habituated  to 
think  for  themselves,  and  to  follow  their  reason  as  their  guide,  would 
be  more  easily  and  safely  governed,  than  with  minds  nourished  in 
error,  and  vitiated  and  debased,  as  in  Europe,  by  ignorance,  in- 
digence and  oppression. 

The  cherish ment  of  the  people  then  was  our  principle,  the  fear 
and  distrust  of  them,  that  of  the  other  party.  Composed,  as  we 
were,  of  the  landed  and  laboring  interests  of  the  country,  we  could 
not  be  less  anxious  for  a  government  of  law  and  order  than  were  the 
inhabitants  of  the  cities,  the  strongholds  of  federalism.  And 
whether  our  efforts  to  save  the  principles  and  form  of  our  con- 
stitution have  not  been  salutary,  let  the  present  republican  freedom, 
order  and  prosperity  of  our  country  determine. 


39.    The  Whig  Party 

The  Whigs  After  the  second  election  of  Jefferson  in  1804,  the  Federalist 
a  composite  party  as  a  fighting  organization  went  to  pieces,  although  it  con- 
^^^^y  n  °^"  tinued  for  some  time  to  put  candidates  in  the  field.  With  the 
advent  of  Andrew  Jackson,  the  victorious  party  which  had  then 
assumed  the  name  "Democratic,"  raised  up  a  new  opposition  in 
the  form  of  the  Whig  party  w^hich  succeeded  in  electing  two  war 
heroes,  Harrison  and  Taylor,  and  then  went  down  before  the 
Republicans  because  it  was  unable  to  meet  the  impending  issue 
of  slavery.  Horace  Greeley  thus  enumerates  the  elements  of  the 
Whig  party :  — 

(i)  Most  of  those  who,  under  the  name  of  National  Republicans, 
had  previously  been  known  as  supporters  of  Adams  and  Clay, 
and  advocates  of  the  American  system;  (2)  Most  of  those  who, 
acting  in  defense  of  what  they  deemed  the  assailed  or  threatened 
rights  of  the  States,  had  been  stigmatized  as  Nullifiers,  or  the  less 
virulent  State-Rights  men,  who  were  thrown  into  a  position  of 
armed  neutrality  towards  the  administration  by  the  doctrines  of 
the  proclamation  of  1832  against  South  Carolina;   (3)  A  majority 


Evolution  of  Political   Issues  in  United  States     95 

of  those  before  known  as  Anti-Masons ;  (4)  Many  who  had  up  to 
that  time  been  known  as  Jackson  men,  but  who  united  in  con- 
demning the  high-handed  conduct  of  the  Executive,  the  im- 
molation of  Duane,  and  the  subserviency  of  Taney ;  (5)  Numbers 
who  had  not  before  taken  any  part  in  politics,  but  who  were  now 
awakened  from  their  apathy  by  the  palpable  usurpations  of  the 
Executive,  and  the  imminent  peril  of  our  whole  fabric  of  con- 
stitutional liberty  and  national  prosperity. 


philosophy 
of  slavery. 


40.    The  Defnocratic  Party  as  the  Champion  of  Slavery 

In  the  early  days  of  the  Republic,  most  earnest  men  looked  upon  The  evolu- 
slavery  as  an  evil  that  would  in  time  disappear;  but  with  the  in-  ^'°"  "^  *^^ 
vention  of  the  cotton  gin,  the  development  of  the  tobacco  and  cotton 
industry,  and  the  westward  expansion  of  the  South,  the  institution 
became  intrenched  behind  economic  interests  so  powerful  as  al- 
most to  defy  criticism  or  assault.  It  was  then  discovered  by 
Southern  political  philosophers  that  slavery  was  "a  natural  insti- 
tution" and  the  "only  relation  which  could  be  maintained  between 
whites  and  blacks,"  and  the  South  began  to  force  the  Democratic 
party  to  assume  a  positive  and  uncompromising  defense  of  these 
propositions.  As  the  Richmond  Examiner  put  it,  "The  South 
makes  and  unmakes  Presidents.  She  dictates  her  terms  to  the 
Northern  Democracy  and  they  obey  her.  She  selects  from  among 
the  faithful  of  the  North  a  man  on  whom  she  can  rely,  and  she 
makes  him  President.  ...  In  and  out  of  Congress,  in  the  science 
of  politics,  she  holds  the  North  to  her  purpose."  ^  In  the  plat- 
form of  1852,  the  Democratic  party  took  the  following  stand  on 
the  slavery  issue  and  foreshadowed  disunion :  — 

Resolved,  That  Congress  has  no  power,  under  the  Constitution,  Anti-slavery 
to  interfere  with  or  control  the  domestic  institutions  of  the  several  deprecated 
States,  and  that  such  States  are  the  sole  and  proper  judges  of  every- 
thing appertaining  to  their  own  affairs  not  prohibited  by  the  Con- 
stitution; that  all  efforts  of  the  Abolitionists  or  others,  made  to 
induce  Congress  to  interfere  with  questions  of  slavery,  or  to  take 
incipient  steps  in  relation  thereto,  are  calculated  to  lead  to  the  most 

*  There  were  about  350,000  slave-holders  in  a  population  of  25,000,000. 


96 


American   Government  and  Politics 


alarming  and  dangerous  consequences,  and  that  all  such  eflforts 
have  an  inevitable  tendency  to  diminish  the  happiness  of  the  people, 
and  endanger  the  stability  and  permanency  of  the  Union  and  ought 
not  to  be  countenanced  by  any  friend  to  our  poUtical  institutions. 

Resolved,  That  the  foregoing  proposition  covers  and  is  intended 
to  embrace,  the  whole  subject  of  slavery  agitation  in  Congress ; 
and  therefore  the  Democratic  party  of  the  Union,  standing  on  this 
national  platform,  will  abide  by,  and  adhere  to,  a  faithful  execution 
of  the  acts  known  as  the  "compromise"  measures  settled  by  the 
last  Congress,  —  "the  act  fcr  reclaiming  fugitives  from  service  cr 
labor"  included;  which  act,  being  designed  to  carry  out  an  ex- 
press provision  of  the  Constitution,  cannot  with  fidelity  thereto 
be  repealed,  nor  so  changed  as  to  destroy  or  impair  its  efficiency. 

Resolved,  That  the  Democratic  party  will  resist  all  attempts 
at  renewing,  in  Congress  or  out  of  it,  the  agitation  of  the  slavery 
question,  under  whatever  shape  or  color  the  attempt  may  be 
made.   .  .  . 

Resolved,  That  the  Democratic  party  will  faithfully  abide  by  and 
uphold  the  principles  laid  down  in  the  Kentucky  and  Virginia 
resolutions  of  1792  and  lygS,^  and  in  the  report  of  Mr.  Madison 
to  the  Virginia  legislature  in  1799;  that  it  adopts  those  principles 
as  constituting  one  of  the  main  foundations  of  its  political  creed, 
and  is  resolved  to  carry  them  out  in  their  obvious  meaning  and 
import.  .  .  . 


41.    The  Platform  of  the  Republican  Party  in  i860  ' 

In  1854  the  triumphant  pro-slavery  party  passed  the  Kansas- 
Nebraska  bill  containing  a  clause  expressly  repealing  the  pro- 
vision of  the  Missouri  Compromise  by  which  slavery  had  been 
excluded  from  the  Louisiana  Purchase  north  of  a  certain  line. 
This  action  met  with  a  storm  of  protest  not  only  from  abolitionists 
who  were  opposed  to  slavery  everywhere,  but  also  from  the  more 
moderate  Northerners  who  were  content  for  the  time  being,  at 

>  For  the  texts  of  these  resolutions,  see  MacDonald,  Select  Documents  of  United- 
States  History,  1776-1861,  pp.  149  sqq. 


Evolution  of  Political   Issues  in   United  States 


97 


least,  to  confine  their  efforts  to  excluding  "the  peculiar  institution" 
from  the  territories.  It  now  became  apparent  that  the  slave  power 
could  be  checked  only  by  a  new  party  founded  definitely  on  some 
principle  of  opposition;  and  the  Republican  party  sprang  into 
existence  within  an  incredibly  short  time.  This  party  held  its 
first  national  convention  in  1856,  and  in  the  fateful  year  of  i860 
selected  Lincoln  as  its  presidential  leader  upon  the  following 
declaration  of  principles :  — 


Resolved,  That  we,  the  delegated  representatives  of  the  Re- 
publican electors  of  the  United  States,  in  convention  assembled, 
in  discharge  of  the  duty  we  owe  to  our  constituents  and  our  country, 
unite  in  the  following  declarations :  — 

1.  That  the  history  of  the  nation,  during  the  last  four  years, 
has  fully  established  the  propriety  and  necessity  of  the  organization 
and  perpetuation  of  the  Republican  party,  and  that  the  causes 
which  called  it  into  existence  are  permanent  in  their  nature,  and 
now,  more  than  ever  before,  demand  its  peaceful  and  constitutional 
triumph. 

2.  That  the  maintenance  of  the  principles  promulgated  in  the 
Declaration  of  Independence  and  embodied  in  the  Federal  Con- 
stitution,—  "that  all  men  are  created  equal;  that  they  are  en- 
dowed by  their  Creator  with  certain  inaUenable  rights;  that  among 
these  are  life,  liberty,  and  the  pursuit  of  happiness;  that  to  secure 
these  rights,  governments  are  instituted  among  men,  deriving 
their  just  powers  from  the  consent  of  the  governed"  —  is  essential 
to  the  preser\'ation  of  our  republican  institutions;  and  that  the 
federal  Constitution,  the  rights  of  the  States,  and  the  union  of  the 
States  must  and  shall  be  preserved. 

3.  That  to  the  union  of  the  States  this  nation  owes  its  un- 
precedented increase  in  population,  its  surprising  development  of 
material  resources,  its  rapid  augmentation  of  wealth,  its  happiness 
at  home,  and  its  honour  abroad;  and  we  hold  in  abhorrence  all 
schemes  for  disunion,  come  from  whatever  source  they  may;  and 
we  congratulate  the  country  that  no  Republican  member  of  Con- 
gress has  uttered  or  countenanced  the  threats  of  disunion  so  often 


The  party 
founded  on 
permanent 
issues. 


The  Decla- 
ration of  In- 
dependence 
afErmed. 


The  Union 
to  be  upheld. 


98 


American  Government  and  Politics 


made  by  Democratic  members,  without  rebuke  and  with  applause 
from  their  political  associates;  and  we  denounce  those  threats  of 
disunion,  in  case  of  a  popular  overthrow  of  their  ascendency,  as 
denying  the  vital  principles  of  a  free  government,  and  as  an  avowal 
of  contemplated  treason,  which  it  is  the  imperative  duty  of  an  in- 
dignant people  sternly  to  rebuke  and  forever  silence. 

4.  That  the  maintenance  inviolate  of  the  rights  of  the  States, 
and  especially  the  right  of  each  State  to  order  and  control  its  own 
domestic  institutions  according  to  its  own  judgment  exclusively, 
is  essential  to  that  balance  of  power  on  which  the  perfection  and 
endurance  of  our  political  fabric  depends;  and  we  denounce  the 
lawless  invasion  by  armed  force  of  the  soil  of  any  State  or  Territory, 
no  matter  under  what  pretext,  as  among  the  gravest  of  crimes. 

5.  That  the  present  Democratic  administration  has  far  exceeded 
our  worst  apprehensions,  in  its  measureless  subserviency  to  the 
exactions  of  a  sectional  interest,  as  especially  evinced  in  its  des- 
perate exertions  to  force  the  infamous  Lecompton  constitution 
upon  the  protesting  people  of  Kansas ;  in  construing  the  personal 
relation  between  master  and  servant  to  involve  an  unqualified  prop- 
erty in  person ;  in  its  attempted  enforcement  everywhere,  on  land 
and  sea,  through  the  intervention  of  Congress  and  of  the  Federal 
courts,  of  the  extreme  pretensions  of  a  purely  local  interest ;  and  in 
its  general  and  unvarying  abuse  of  the  power  intrusted  to  it  by  a 
confiding  people. 

6.  That  the  people  justly  view  with  alarm  the  reckless  extrava- 
gance which  pervades  every  department  of  the  Federal  govern- 
ment; that  a  return  to  rigid  economy  and  accountability  is  indis- 
pensable to  arrest  the  systematic  plunder  of  the  public  treasury  by 
favored  partisans;  while  the  recent  startling  development  of 
frauds  and  corruptions  at  the  Federal  metropolis  show  that  an 
entire  change  of  administration  is  imperatively  demanded. 

7.  That  the  new  dogma  that  the  Constitution,  of  its  own  force, 
carries  slavery  into  any  or  all  of  the  Territories  of  the  United  States, 
is  a  dangerous  political  heresy,  at  variance  with  the  explicit  pro- 
visions of  that  instrument  itself,  with  contemporaneous  exposition, 


Evolution  of  Political  Issues  in  United  States     99 

and  with  legislative  and  judicial  precedent;  is  revolutionary  in  its 
tendency,  and  subversive  of  the  peace  and  harmony  of  the  country. 

8.  That  the  normal  condition  of  all  the  territory  of  the  United    Congress 
States  is  that  of  freedom;    that  as  our  republican  fathers,  when   authorize 
they  had  abolished  slavery  in  all  our  national  territory,  ordained   slavery   in 
that  no  person  should  be  deprived  of  life,  liberty,  or  property  with-   tories^"^"" 
out  due  process  of  law,  it  becomes  our  duty,  by  legislation,  whenever 

such  legislation  is  necessary,  to  maintain  this  provision  of  the  Con- 
stitution against  all  attempts  to  violate  it ;  and  we  deny  the  author- 
ity of  Congress,  of  a  territorial  legislature,  or  of  any  individual,  to 
give  legal  existence  to  slavery  in  any  territory  of  the  United  States. 

9.  That  we  brand  the  recent  reopening  of  the  African  slave-   The  slave 
trade,  under  the  cover  of  our  national  flag,  aided  by  perversions 

of  judicial  power,  as  a  crime  against  humanity,  and  a  burning  shame 
to  our  country  and  age ;  and  we  call  upon  Congress  to  take  prompt 
and  efficient  measures  for  the  total  and  final  suppression  of  that 
execrable  traffic. 

10.  That  in  the  recent  vetoes,  by  their  federal  governors,  of  the 
acts  of  the  legislatures  of  Kansas  and  Nebraska,  prohibiting 
slavery  in  those  Territories,  we  find  a  practical  illustration  of 
the  boasted  Democratic  principle  of  non-intervention  and  popular 
sovereignty,  embodied  in  the  Kansas-Nebraska  Bill,  and  a  dem- 
onstration of  the  deception  and  fraud  involved  therein. 

11.  That  Kansas  should  of  right  be  immediately  admitted  as  a 
State  under  the  Constitution  recently  formed  and  adopted  by  her 
people  and  accepted  by  the  House  of  Representatives. 

12.  That,  while  providing  revenue  for  the  support  of  the  general   Trotective 
government  by  duties  upon  imports,  sound  policy  requires  such  an 
adjustment  of  these  imposts  as  to  encourage  the  development  of 

the  industrial  interests  of  the  whole  country;  and  we  commend 
that  policy  of  national  exchanges  which  secures  to  the  working- 
men  liberal  wages,  to  agriculture  remunerating  prices,  to  mechanics 
and  manufacturers  an  adequate  reward  for  their  skill,  labor,  and 
enterprise,  and  to  the  nation  commercial  prosperity  and  independ- 
ence. 


lOO 


American  Government  and  Politics 


Land 
policy. 


Immigra- 
tion. 


13.  That  we  protest  against  any  sale  or  alienation  to  others 
of  the  pubUc  lands  held  by  actual  settlers,  and  against  any  view 
of  the  free-homestead  policy  which  regards  the  settlers  as  paupers 
or  suppliants  for  public  bounty;  and  we  demand  the  passage  by 
Congress  of  the  complete  and  satisfactory  homestead  measure 
which  has  already  passed  the  House. 

14.  That  the  Republican  party  is  opposed  to  any  change  in  our 
naturalization  laws,  or  any  state  legislation  by  which  the  rights  of 
citizenship  hitherto  accorded  to  immigrants  from  foreign  lands 
shall  be  abridged  or  impaired ;  and  in  favor  of  giving  a  full  and 
efi&cient  protection  to  the  rights  of  all  classes  of  citizens,  whether 
native  or  naturalized,  both  at  home  and  abroad. 

15.  That  appropriations  by  Congress  for  river  and  harbor  im- 
provements of  a  national  character,  required  for  the  accommo- 
dation and  security  of  our  existing  commerce,  are  authorized  by 
the  Constitution,  and  justified  by  the  obligations  of  government 
to  protect  the  lives  and  property  of  its  citizens. 

16.  That  a  railroad  to  the  Pacific  Ocean  is  imperatively  demanded 
by  the  interests  of  the  whole  country;  that  the  federal  government 
ought  to  render  immediate  and  efficient  aid  in  its  construction; 
and  that,  as  preliminary  thereto,  a  daily  overland  mail  should  be 
promptly  established. 

17.  Finally,  having  thus  set  forth  our  distinctive  principles  and 
views,  we  invite  the  cooperation  of  all  citizens,  however  differing 
on  other  questions,  who  substantially  agree  with  us  in  their  affirm- 
ance and  support. 


Develop- 
ment  of 
organization 
within   the 
Republican 
party. 


42.    The  Republican  Party  and  War  Politics 

During  the  Civil  War  the  Republican  party,  which  had  been 
carried  into  power  by  a  minority  vote,^  became  consolidated  into 
a  great  political  organization  controlling  the  federal  offices  and 
enjoying  all  the  prerogatives  and  emoluments  connected  with 
them.  For  a  long  time  after  the  war  the  party  made  its  principal 
appeal  to  the  inflamed  passions  which  the  struggle  had  left  behind, 

'  This  was  due  to  the  division  among  the  Democrats  in  i860. 


Evolution  of  Political   Issues  in   United  States     loi 

and  steadily  refused  to  recognize  and  effectively  meet  many  of 
the  most  pressing  political  issues.  In  1876,  when  it  had  been  sadly 
discredited  in  many  ways  by  the  corruption  which  had  undoubtedly 
prevailed  under  the  Grant  administrations,  and  was  on  the  edge 
of  defeat,  as  the  election  subsequently  revealed,  the  Republican 
party  put  forward  the  following  claim  upon  the  voters  for 
support :  — 

When,  in  the  economy  of  Providence,  this  land  was  to  be  How  the 
purged  of  human  slavery,  and  when  the  strength  of  government  of  fo  power"^ 
the  people,  by  the  people,  and  for  the  people,  was  to  be  demon- 
strated, the  Republican  party  came  into  power.  Its  deeds  have 
passed  into  history,  and  we  look  back  to  them  with  pride.  Incited 
by  their  memories  to  high  aims  for  the  good  of  our  country  and 
mankind,  and  looking  to  the  future  with  unfaltering  courage, 
hope,  and  purpose,  we,  the  representatives  of  the  party  in  national 
convention  assembled,  make  the  following  declaration  of  prin- 
ciples :  — 

1.  The  United  States  of  America  is  a  nation,  not  a  league.     By   The  func- 
the  combined  workings  of  the  national  and  state  governments,    ''°",  °,  ^  ^ 

°  c)  J     party  to  up- 

under  their  respective  constitutions,  the  rights  of  every  citizen  are   hold  per- 
secured,  at  home  and  abroad,  and  the  common  welfare  promoted.   ^°       rights. 

2.  The  Republican  party  has  preserved  these  governments  to 
the  hundredth  anniversary  of  the  nation's  birth,  and  they  are  now 
embodiments  of  the  great  truths  spoken  at  its  cradle,  "That  all 
men  are  created  equal;  that  they  are  endowed  by  their  Creator 
with  certain  unalienable  rights,  among  which  are  life,  liberty,  and 
the  pursuit  of  happiness ;  that  for  the  attainment  of  these  ends 
governments  have  been  instituted  among  men,  deriving  their 
just  powers  from  the  consent  of  the  governed."  Until  these  truths 
are  cheerfully  obeyed,  or,  if  need  be,  vigorously  enforced,  the  work 
of  the  Republican  party  is  unfinished. 

3.  The  permanent  pacification  of  the  Southern  section  of  the   The  work 
Union,  and  the  complete  protection  of  all  its  citizens  in  the  free   struction'to 
enjoyment  of  all  their  rights,  is  a  duty  to  which  the  Republican    he  com- 
party  stands  sacredly  pledged.     The  power  to  provide  for  the   ^^^^  ' 


I02 


American   Government  and   Politics 


Sectional 
feeling  dep- 
recated. 


The    Demo- 
cratic party 
in    sym- 
pathy with 
treason. 


enforcement  of  the  principles  embodied  by  the  recent  constitutional 
amendments  is  vested  by  those  amendments  in  the  Congress  of  the 
United  States,  and  we  declare  it  to  be  the  solemn  obHgation  ,of  the 
legislative  and  executive  departments  of  the  government  to  put 
into  immediate  and  vigorous  exercise  all  their  constitutional  powers 
for  removing  any  just  causes  of  discontent  on  the  part  of  any  class, 
and  for  securing  to  every  American  citizen  complete  liberty  and 
exact  equality  in  the  exercise  of  all  civil,  political,  and  public 
rights.  To  this  end  we  imperatively  demand  a  Congress  and 
a  Chief  Executive  whose  courage  and  fidelity  to  these  duties 
shall  not  falter  until  these  results  are  placed  beyond  dispute  or 
recall. 

15.  We  sincerely  deprecate  all  sectional  feeling  and  tendencies. 
We  therefore  note  with  deep  solicitude  that  the  Democratic  party 
counts,  as  its  chief  hope  of  success,  upon  the  electoral  vote  of  a 
united  South,  secured  through  the  efforts  of  those  who  were  recently 
arrayed  against  the  nation ;  and  we  invoke  the  earnest  attention  of 
the  country  to  the  grave  truth  that  a  success  thus  achieved  would 
reopen  sectional  strife  and  imperil  national  honor  and  human 
rights. 

16.  We  charge  the  Democratic  party  with  being  the  same  in 
character  and  spirit  as  when  it  sympathized  with  treason;  with 
making  its  control  of  the  House  of  Representatives  the  triumph 
and  opportunity  of  the  nation's  recent  foes;  with  reasserting 
and  applauding  in  the  national  Capitol  the  sentiments  of  unre- 
pentant rebellion;  with  sending  Union  soldiers  to  the  rear,  and 
promoting  Confederate  soldiers  to  the  front;  with  deliberately 
proposing  to  repudiate  the  plighted  faith  of  the  government;  with 
being  equally  false  and  imbecile  upon  the  overshadowing  financial 
questions ;  with  thwarting  the  ends  of  justice  by  its  partisan  mis- 
management and  obstruction  of  investigation;  with  proving  itself, 
through  the  period  of  its  ascendency  in  the  lower  House  of  Congress, 
utterly  incompetent  to  administer  the  government;  and  we  warn 
the  country  against  trusting  a  party  thus  alike  unworthy,  recreant, 
and  incapable.  .  .  . 


Evolution  of  Political   Issues  in   United  States     103 

43.    The  Character  of  Democratic  Opposition  in  1884 

The  Democratic  party,  having  gained  strength  by  the  restora- 
tion of  white  supremacy  in  the  South,  was  quick  to  take  advantage 
of  the  weaknesses  in  the  Republican  administration  and,  mar- 
shaling its  own  vote  together  with  that  of  the  discontented  Repub- 
licans, was  able  to  carry  the  election  in  1884  principally  upon  a 
platform  of  protest,  containing  the  following  indictment  of  the 
opposing  party :  — 

The  Republican  party,  so  far  as  principle  is  concerned,  is  a   Republican 

.    .  ,  ...  .        .        r  ....  theory    and 

reminiscence.  In  practice  it  is  an  organization  for  ennching  those  practice, 
who  control  its  machinery.  The  frauds  and  jobbery  which 
have  been  brought  to  light  in  every  department  of  the  government 
are  sufficient  to  have  called  for  reform  within  the  Republican 
party ;  yet  those  in  authority,  made  reckless  by  the  long  possession 
of  power,  have  succumbed  to  its  corrupting  influence,  and  have 
placed  in  nomination  a  ticket  against  which  the  independent  portion 
of  the  party  are  in  open  revolt.  Therefore  a  change  is  demanded. 
Such  a  change  was  alike  necessary  in  1876,  but  the  will  of  the  people 
was  then  defeated  by  a  fraud  which  can  never  be  forgotten  nor  con- 
doned. Again,  in  1880,  the  change  demanded  by  the  people  was 
defeated  by  the  lavish  use  of  money  contributed  by  unscrupulous 
contractors  and  shameless  jobbers,  who  had  bargained  for  unlawful 
profits  or  high  office.  The  Republican  party,  during  its  legal,  its 
stolen,  and  its  bought  tenures  of  power,  has  steadily  decayed  in 
moral  character  and  political  capacity. 

Its  platform  promises  are  now  a  list  of  its  past  failures.     It   Republican 
demands  the  restoration  of  our  navy ;  it  has  squandered  hundreds   perform- 
of  millions  to  create  a  navy  that  does  not  exist.     It  calls  upon  Con-   ances. 
gress  to  remove  the  burdens  under  which  American  shipping  has 
been  depressed;    it  imposed  and  has  continued  these  burdens. 
It  professes  the  policy  of  reserving  the  public  lands  for  small  hold- 
ings by  actual  settlers;    it  has  given  away  the  people's  heritage, 
till  now  a  few  railroads  and  non-resident  aliens,  individual  and 
corporate,  possess  a  larger  area  than  that  of  all  our  farms  between 
the  two  seas.     It  professes  a  preference  for  free  institutions;  it 


I04  American   Government  and   Politics 

organized  and  tried  to  legalize  a  control  of  state  elections  by  federal 
troops.  It  professes  a  desire  to  elevate  labor ;  it  subjected  Ameri- 
can workingmen  to  the  competition  of  convict  and  imported  con- 
tract labor.  ...  It  "accepts  anew  the  duty  of  leading  in  the 
work  of  progress  and  reform;"  its  caught  criminals  are  permitted 
to  escape  through  contrived  delays  or  actual  connivance  in  the 
prosecution.  Honey-combed  with  corruption,  out-breaking  ex- 
posures no  longer  shock  its  moral  sense.  Its  honest  members, 
its  independent  journals,  no  longer  maintain  a  successful  contest 
for  authority  in  its  canvasses  or  a  veto  upon  bad  nominations. 
That  change  is  necessary  is  proved  by  an  existing  surplus  of  more 
than  $100,000,000,  which  has  yearly  been  collected  from  a  suffering 
people.  Unnecessary  taxation  is  unjust  taxation.  We  denounce 
the  Republican  party  for  having  failed  to  relieve  the  people  from 
crushing  war  taxes,  which  have  paralyzed  business,  crippled  in- 
dustry, and  deprived  labor  of  employment  and  of  just  reward. 
Democratic  The  Democracy  pledges  itself  to  purify  the  administration  from 
corruption,  to  restore  economy,  to  revive  respect  for  law,  and  to 
reduce  taxation  to  the  lowest  limit  consistent  with  due  regard  to 
the  preservation  of  the  faith  of  the  nation  to  its  creditors  and  pen- 
sioners. Knowing  full  well,  however,  that  legislation  affecting 
the  occupations  of  the  people  should  be  cautious  and  conservative 
in  method,  not  in  advance  of  public  opinion,  but  responsive  to  its 
demands,  the  Democratic  party  is  pledged  to  re\dse  the  tariff  in  a 
spirit  of  fairness  to  all  interests.  But,  in  making  reduction  in 
taxes,  it  is  not  proposed  to  injure  any  domestic  industries,  but 
rather  to  promote  their  healthy  growth.  From  the  foundation  of 
this  government,  taxes  collected  at  the  custom-house  have  been  the 
chief  source  of  federal  revenue.  Such  they  must  continue  to  be. 
Moreover,  many  industries  have  come  to  rely  upon  legislation  for 
successful  continuance,  so  that  any  change  of  law  must  be  at  every 
step  regardful  of  the  labor  and  capital  thus  involved.  The  pro- 
cess of  reform  must  be  subject  in  the  execution  to  this  plain  dictate 
of  justice:  all  taxation  shall  be  limited  to  the  requirements  of 
economical   government.     The   necessary   reduction   in   taxation 


promises. 


Evolution  of  Political   Issues  in  United  States     105 

can  and  must  be  effected  without  depriving  American  labor  of  the 
ability  to  compete  successfully  with  foreign  labor,  and  without 
imposing  lower  rates  of  duty  than  will  be  ample  to  cover  any  in- 
creased cost  of  production  which  may  exist  in  consequence  of  the 
higher  rate  of  wages  prevailing  in  this  country.  Sufficient  revenue 
to  pay  all  the  expenses  of  the  federal  government,  economically 
administered,  including  pensions,  interest  and  principal  of  the 
public  debt,  can  be  got  under  our  present  system  of  taxation  from 
custom-house  taxes  on  fewer  imported  articles,  bearing  heaviest 
on  articles  of  luxury,  and  bearing  lightest  on  articles  of  necessity. 
We  therefore  denounce  the  abuses  of  the  existing  tariff;  and, 
subject  to  the  preceding  limitations,  we  demand  that  federal 
taxation  shall  be  exclusively  for  public  purposes,  and  shall  not  ex- 
ceed the  needs  of  the  government  economically  administered.  .  .  . 

44.    The  Social  Cleavage  of  iSg6 

A  turning  point  came  in  American  politics  in  i8g6,  when  Mr. 
Bryan,  in  his  famous  speech  before  the  Democratic  convention 
in  Chicago,  swept  aside  the  century-long  sectional  issues  and 
made  an  appeal  to  the  broad  masses  of  the  people  to  unite  against 
the  great  financial  and  corporate  interests. 

.  .  .  We  stand  here  representing  people  who  are  the  equals   The 
before  the  law  of  the  largest  cities  in  the  State  of  Massachusetts.    ^^°^  '"^T 

^  men  and 

When  you  come  before  us  and  tell  us  that  we  shall  disturb  your  small  mer- 
business  interests,  we  reply  that  you  have  disturbed  our  business  ^'^^"^^• 
interests  by  your  action.  We  say  to  you  that  you  have  made  too 
limited  in  its  application  the  definition  of  a  business  man.  The 
man  who  is  employed  for  wages  is  as  much  a  business  man  as  his 
employer.  The  attorney  in  a  country  town  is  as  much  a  business 
man  as  the  corporation  counsel  in  a  great  metropoHs.  The  mer- 
chant at  the  cross-roads  store  is  as  much  a  business  man  as  the 
merchant  of  New  York.  The  farmer  who  goes  forth  in  the  morning 
and  toils  all  day,  begins  in  the  spring  and  toils  all  summer,  and  by 
the  application  of  brain  and  muscle  to  the  natural  resources  of  this 
country  creates  wealth,  is  as  much  a  business  man  as  the  man  who 


io6 


American   Government  and   Politics 


Praise  for 
the    Western 
pioneers. 


Democratic 
party  on 
the  side  of 
the  masses. 


goes  upon  the  Board  of  Trade  and  bets  upon  the  price  of  grain. 
The  miners  who  go  a  thousand  feet  into  the  earth  or  climb  2,000 
feet  upon  the  cliffs  and  bring  forth  from  their  hiding  places  the 
precious  metals  to  be  poured  in  the  channels  of  trade  are  as  much 
business  men  as  the  few  financial  magnates  who  in  a  back  room 
corner  the  money  of  the  world. 

We  come  to  speak  for  this  broader  class  of  business  men.  Ah, 
my  friends,  we  say  not  one  word  against  those  who  live  upon  the 
Atlantic  coast ;  but  those  hardy  pioneers  who  braved  all  the  dangers 
of  the  wilderness,  who  have  made  the  desert  to  blossom  as  the  rose 
—  those  pioneers  away  out  there,  rearing  their  children  near  to 
nature's  heart,  where  they  can  mingle  their  voices  with  the  voices 
of  the  birds  —  out  there  where  they  have  erected  school  houses 
for  the  education  of  their  children  and  churches  where  they  praise 
their  Creator,  and  the  cemeteries  where  sleep  the  ashes  of  their 
dead  —  are  as  deserving  of  the  consideration  of  this  party  as  any 
people  in  this  country. 

It  is  for  these  that  we  speak.  We  do  not  come  as  aggressors. 
Our  war  is  not  a  war  of  conquest.  We  are  fighting  in  the  defense 
of  our  homes,  our  families  and  posterity.  We  have  petitioned, 
and  our  petitions  have  been  scorned.  We  have  entreated  and  our 
entreaties  have  been  disregarded.  We  have  begged  and  they  have 
mocked  when  our  calamity  came.  We  beg  no  longer ;  we  entreat 
no  more ;  we  petition  no  more.     We  defy  them.  .  .  . 

Mr.  Carlisle  said  in  1878  that  this  was  a  struggle  between  the  idle 
holders  of  idle  capital  and  the  struggling  masses  who  produce  the 
wealth  and  pay  the  taxes  of  the  country;  and  my  friends,  it  is 
simply^a  question  that  we  shall  decide  upon  which  side  shall  the 
Democratic  party  fight.  Upon  the  side  of  the  idle  holders  of  idle 
capital,  or  upon  the  side  of  the  struggling  masses?  That  is  the 
question  that  the  party  must  answer  first;  and  then  it  must  be 
answered  by  each  individual  hereafter.  The  sympathies  of  the 
Democratic  party,  as  described  by  the  platform,  are  on  the  side 
of  the  struggling  masses,  who  have  ever  been  the  foundation  of  the 
Democratic  party. 


Evolution  of  Political   Issues  in   United  States     107 

There  are  two  ideas  of  government.     There  are  those  who  be-    Democratic 
lieve  that  if  you  just  legislate  to  make  the  well-to-do  prosperous   prosperity. 
that  their  prosperity  will   leak   through   on  those  below.     The 
Democratic  idea  has  been  that  if  you  legislate  to  make  the  masses 
prosperous,  their  prosperity  will  find  its  way  up  and  through  every 
class  that  rests  upon  it. 

You  come  to  us  and  tell  us  that  the  great  cities  are  in  favor  of 
the  gold  standard.  I  tell  you  that  the  great  cities  rest  upon  these 
broad  and  fertile  prairies.  Bum  down  your  cities  and  leave  our 
farms,  and  your  cities  will  spring  up  again  as  if  by  magic.  But 
destroy  our  farms  and  the  grass  will  grow  in  the  streets  of  every 
city  in  this  country.   .   .  . 

If  they  dare  to  come  out  and  in  the  open  defend  the  gold  stand-  The 
ard  as  a  good  thing,  we  shall  fight  them  to  the  uttermost,  having  ^  ^  ^"^^' 
behind  us  the  producing  masses  of  the  Nation  and  the  world. 
Having  behind  us  the  commercial  interests  and  the  laboring  in- 
terests and  all  the  toiling  masses,  we  shall  answer  their  demands 
for  a  gold  standard  by  saying  to  them,  you  shall  not  press  down 
upon  the  brow  of  labor  this  crown  of  thorns.  You  shall  not  crucify 
mankind  upon  a  cross  of  gold. 

45.    Contemporary  Political  Issues 

The  following  extracts  from  the  Republican  platform  of  igo8 
reveal  the  tendency  of  the  older  issues  growing  out  of  the  Civil 
War  and  Reconstruction  to  disappear  before  the  rise  of  the  newer 
questions  connected  with  the  growth  of  industry  and  commerce, 
the  relations  of  ca|)ital  and  labor,  the  government  of  our  depend- 
encies, and  the  conservation  of  our  natural  resources.  The 
passages  given  here  should  be  compared  with  Mr.  Taft's  accept- 
ance speech  and  with  the  platforms  of  the  other  parties. 

We  favor  the  establishment  of  a  postal  savings  bank  system  for  Postal 
the  convenience  of  the  people  and  the  encouragement  of  thrift. 

The  Republican  Party  passed  the  Sherman  Anti-Trust  law  over   Trusts. 
Democratic  opposition,  and  enforced  it  after  Democratic  dereliction. 
It  has  been  a  wholesome  instrument  for  good  in  the  hands  of  a  wise 


io8 


American  Government  and   Politics 


and  fearless  administration.  But  experience  has  shown  that  its 
effectiveness  can  be  strengthened  and  its  real  objects  better 
attained  by  such  amendments  as  will  give  to  the  Federal  Govern- 
ment greater  supervision  and  control  over,  and  secure  greater 
publicity  in,  the  management  of  that  class  of  corporations 
engaged  in  interstate  commerce  having  power  and  opportunity 
to  effect  monopolies. 

We  approve  the  enactment  of  the  railroad  rate  law  and  the  vig- 
orous enforcement  by  the  present  administration  of  the  statutes 
against  rebates  and  discriminations,  as  a  result  of  which  the  advan- 
tages formerly  possessed  by  the  large  shipper  over  the  small 
shipper  have  substantially  disappeared;  and  in  this  connection 
we  commend  the  appropriation  by  the  present  Congress  to  enable 
the  Interstate  Commerce  Commission  to  thoroughly  investigate 
and  give  publicity  to  the  accounts  of  interstate  railroads.  We 
believe,  however,  that  the  interstate  commerce  law  should  be  further 
amended  so  as  to  give  railroads  the  right  to  make  and  publish 
traffic  agreements  subject  to  the  approval  of  the  Commission,  but 
maintaining  always  the  principle  of  competition  between  naturally 
competing  lines  and  avoiding  the  common  control  of  such  lines 
by  any  means  whatsoever.  We  favor  such  national  legislation 
and  supervision  as  will  prevent  the  future  over-issue  of  stocks  and 
bonds  by  interstate  carriers. 

The  enactment  in  constitutional  form  at  the  present  session  of 
Congress  of  the  Employers'  Liability  law,  the  passage  and  enforce- 
ment of  the  safety  appHance  statutes,  as  well  as  the  additional 
protection  secured  for  engineers  and  firemen,  the  reduction  in  the 
hours  of  labor  of  trainmen  and  railroad  telegraphers,  the  successful 
exercise  of  the  powers  of  mediation  and  arbitration  between  inter- 
state railroads  and  their  employees,  and  the  law  making  a  begin- 
ning in  the  policy  of  compensation  for  injured  employees  of  the 
Government,  are  among  the  most  commendable  accomplishments 
of  the  present  administration.  But  there  is  further  work  in  this 
direction  yet  to  be  done,  and  the  Republican  Party  pledges  its 
continued  devotion  to  every  cause  that  makes  for  safety  and  the 


Evolution  of  Political   Issues  in  United  States     109 

betterment  of  conditions  among  those  whose  labor  contributes  so 
much  to  the  progress  and  welfare  of  the  country. 

The  same  wise  policy  which  has  induced  the  Republican  Party   Wage 

.  .  ,    ,  I  1-  1  .    1         earners 

to  maintam  protection  to  American  labor,  to  establish  an  eight-  generally, 
hour  day  in  the  construction  of  all  public  works,  to  increase  the  list 
of  employees  who  shall  have  preferred  claims  for  wages  under  the 
bankruptcy  laws,  to  adopt  a  child  labor  statute  for  the  District  of 
Columbia,  to  direct  an  investigation  into  the  condition  of  working 
women  and  children,  and  later,  of  employees  of  telephone  and 
telegraph  companies  engaged  in  interstate  business,  to  appropriate 
$150,000  at  the  recent  session  of  Congress  in  order  to  secure  a 
thorough  inquiry  into  the  causes  of  catastrophes  and  loss  of  life  in 
the  mines  and  to  amend  and  strengthen  the  law  prohibiting  the 
importation  of  contract  labor,  will  be  pursued  in  every  legitimate 
direction  within  Federal  authority  to  lighten  the  burdens  and  in- 
crease the  opportunity  for  happiness  and  advancement  of  all  who 
toil.  The  Republican  Party  recognizes  the  special  needs  of  wage- 
workers  generally,  for  their  well  being  means  the  well  being  of  all. 
But  more  important  than  all  other  considerations  is  that  of  good 
citizenship,  and  we  especially  stand  for  the  needs  of  every  American, 
whatever  his  occupation,  in  his  capacity  as  a  self-respecting  citizen. 

The  Republican  Party  during  the  last  twelve  years  has  accom-  The  Ameri- 
plished  extraordinary  work  in  bringing  the  resources  of  the  National  ^'^"^  armer. 
Government  to  the  aid  of  the  farmer,  not  only  in  advancing  agri- 
culture itself,  but  in  increasing  the  conveniences  of  rural  life. 
Free  rural  mail  delivery  has  been  established;  it  now  reaches 
millions  of  our  citizens,  and  we  favor  its  extension  until  every 
community  in  the  land  receives  the  full  benefits  of  the  postal 
service.  We  recognize  the  social  and  economical  advantages  of 
good  country  roads,  maintained  more  and  more  largely  at  public 
expense,  and  less  and  less  at  the  expense  of  the  abutting  owner. 
In  this  work  we  commend  the  growing  practice  of  State  aid,  and 
we  approve  the  efforts  of  the  National  Agricultural  Department 
by  experiments  and  otherwise  to  make  clear  to  the  public  the  best 
methods  of  road  construction. 


I  lO 


American   Government  and   Politics 


We  indorse  the  movement  inaugurated  by  the  administration  for 
the  conservation  of  natural  resources;  we  approve  all  measures  to 
prevent  the  waste  of  timber;  we  commend  the  work  now  going  on 
for  the  reclamation  of  arid  lands,  and  reaffirm  the  Republican  policy 
of  the  free  distribution  of  the  available  areas  of  the  public  domain 
to  the  landless  settler.  No  obligation  of  the  future  is  more  insistent 
and  none  will  result  in  greater  blessings  to  posterity.  In  line  with 
this  splendid  undertaking  is  the  further  duty,  equally  imperative,  to 
enter  upon  a  systematic  improvement  upon  a  large  and  compre- 
hensive plan,  just  to  all  portions  of  the  country,  of  the  waterways, 
harbors,  and  great  lakes,  whose  natural  adaptability  to  the  in- 
creasing traffic  of  the  land  is  one  of  the  greatest  gifts  of  a  benign 
Providence. 

The  conspicuous  contributions  of  American  statesmanship  to 
the  great  cause  of  international  peace,  so  signally  advanced  in 
The  Hague  conferences,  are  an  occasion  for  just  pride  and  grati- 
fication. At  the  last  session  of  the  Senate  of  the  United  States, 
eleven  Hague  conventions  were  ratified,  establishing  the  rights  of 
neutrals,  laws  of  war  on  land,  restriction  of  submarine  mines, 
limiting  the  use  of  force  for  the  collection  of  contractual  debts, 
governing  the  opening  of  hostilities,  extending  the  application  of 
Geneva  principles,  and,  in  many  ways  lessening  the  evils  of  war 
and  promoting  the  peaceful  settlement  of  international  controver- 
sies. At  the  same  session  twelve  arbitration  conventions  with 
great  nations  were  confirmed,  and  extradition,  boundary  and 
naturalization  treaties  of  supreme  importance  were  ratified. 
We  indorse  such  achievements  as  the  highest  duty  a  people  can 
perform  and  proclaim  the  obligation  of  further  strengthening  the 
bonds  of  friendship  and  good  will  with  all  nations  of  the  world. 

We  adhere  to  the  Republican  doctrine  of  encouragement  to 
American  shipping  and  urge  such  legislation  as  will  revive  the 
merchant  marine  prestige  of  the  country,  so  essential  to  national 
defense,  the  enlargement  of  foreign  trade  and  the  industrial  pros- 
perity of  our  own  people. 

We  commend  the  efforts  designed  to  secure  greater  efficiency  in 


Evolution  of  Political   Issues  in  United  States     iii 

National  public  health  agencies,  and  favor  such  legislation  as  will 
effect  this  purpose. 

In  the  interest  of  the  great  mineral  industries  of  our  country,  we 
earnestly  favor  the  establishment  of  a  Bureau  of  Mines  and 
Mining. 

The  American  Government,  in  Republican  hands,  has  freed   Cuba,  Porto 
Cuba,  given  peace  and  protection  to  Porto  Rico  and  the  Philip-   ^^°^  ^^^ 
pines  under  our  flag,  and  begun  the  construction  of  the  Panama   Panama. 
Canal.     The  present  conditions  in  Cuba  vindicate  the  wisdom 
of  maintaining  between  that  Republic  and  this  imperishable  bonds 
of  mutual  interest,  and  the  hope  is  now  expressed  that  the  Cuban 
people  will  soon  again  be  ready  to  assume  complete  sovereignty 
over  their  land. 

In  Porto  Rico  the  Government  of  the  United  States  is  meeting 
loyal  and  patriotic  support;  order  and  prosperity  prevail,  and  the 
well  being  of  the  people  is  in  every  respect  promoted  and  con- 
served. 

We  believe  that  the  native  inhabitants  of  Porto  Rico  should  be 
at  once  collectively  made  citizens  of  the  United  States,  and  that  all 
others  properly  qualified  under  existing  laws  residing  in  said  island 
should  have  the  privilege  of  becoming  naturalized. 

In  the  Philippines  insurrection  has  been  suppressed,  law  estab- 
lished and  life  and  property  made  secure.  Education  and  prac- 
tical experience  are  there  advancing  the  capacity  of  the  people  for 
government,  and  the  policies  of  McKinley  and  Roosevelt  are  lead- 
ing the  inhabitants  step  by  step  to  an  ever-increasing  measure  of 
home  rule. 

Time  has  justified  the  selection  of  the  Panama  route  for  the  great 
Isthmian  Canal,  and  the  events  have  shown  the  wisdom  of  securing 
authority  over  the  zone  through  which  it  is  to  be  built.  The  work 
is  now  progressing  with  a  rapidity  far  beyond  expectation,  and 
already  the  realization  of  the  hopes  of  centuries  has  come  within 
the  vision  of  the  near  future. 


CHAPTER  VII 

THE  DEVELOPMENT  OF  PARTY  MACHINERY 

The  nomination  of  candidates  for  local  offices  and  the  legisla- 
ture was  made  at  first  in  mass  meetings,  which  very  soon  evolved 
into  regularly  constituted  conventions.  Owing  to  the  difficulties 
of  travel,  state  conventions  were  for  a  long  time  well  nigh  impos- 
sible, so  that  the  politicians  of  each  party  hit  upon  the  scheme  of 
forming  all  the  party  members  in  the  state  legislature  into  a  "legis- 
lative caucus"  for  the  purpose  of  putting  forward  the  candidates 
for  state  offices.  For  example,  Jay  was  nominated  for  governor 
of  New  York  "at  a  sort  of  a  legislative  caucus"  in  1795,  and  the 
institution  soon  won  general  recognition.  The  following  account 
of  the  nomination  of  DeWitt  Clinton  for  governor  in  181 7  reveals 
the  curious  device  of  supplementing  the  legislative  caucus  by 
delegates  elected  from  districts  not  represented  in  the  legislature 
by  party  members.  It  may  be  said  to  mark  a  stage  between  the 
legislative  caucus  and  the  regular  state  convention. 


46.    The  Legislative  Nominating  Caucus 

It  had  been  the  uniform  usage  of  the  democratic  party  to  select 
their  candidate  for  governor,  by  the  majority  of  voices  declared  at 
an  assemblage  of  men  composed  exclusively  of  the  republican 
members  of  the  legislature.  By  this  arrangement  those  republican 
citizens  who  resided  in  counties  represented  by  federalists,  could 
have  no  voice  in  the  selection  of  a  candidate  for  that  important 
office.  This  the  Clintonians  complained  of  as  unreasonable  and 
unjust.  They  therefore  proposed  that  delegates  should  be  chosen 
in  county  convention,  which  convention  should  be  formed  of  dele- 
gates chosen  at  the  primary  meetings  of  republicans  in  the  respec- 
tive towns,  and  that  the  delegates  thus  chosen  from  the  counties 
equal  in  number  to  the  members  of  assembly  from  the  respective 


The  Development  of  Party   Machinery       113 

counties,  should,  in  a  caucus  to  nominate  a  governor,  have  the 
same  rights  and  exercise  the  same  powers  as  repubhcan  members 
of  the  legislature.  It  was,  I  beHeve,  well  understood,  that  in  the 
greatest  proportion  of  the  counties  represented  by  federalists,  a 
very  large  majority  of  the  republicans  were  in  favor  of  the  nomi- 
nation of  Mr.  Clinton.  Besides,  the  Clintonians,  by  means  of 
the  council  of  appointment,  controlled  the  patronage  of  the  state, 
and  it  was  not  difficult  for  a  man  who  understood  the  use  of  that 
machine  as  well  as  Judge  Spencer,  to  control  by  its  influence,  the 
action  of  most  of  the  county  conventions.  Hence,  it  was  most 
evident  that  the  adoption  of  the  scheme  could  scarcely  fail  to  for- 
ward, and  perhaps,  I  may  add,  ensure  the  triumph  of  Mr.  Clinton. 

In  accordance  with  these  views,  a  republican  convention  was  first   Delegates 
held  in  the  county  of  Albany,  at  which  John  J.  Moak  was  chair-  ^oun'tks"'' 
man,  and  Jacob  Lansing  secretary,  on  the  fourth  of  February,   represented 
when  it  was  resolved  that  the  counties  represented  by  federalists   ^^  Federal- 
in  the  legislature,  ought  to  be  represented  in  the  state  convention 
to  nominate  a  governor  by  republican  delegates  chosen  by  such 
counties;     and  Albany   being   represented   by  federalists,    John 
Woodworth,  Elisha  Jenkins,  John  McCarthy  and  Thomas  Har- 
man  were  appointed  delegates  from  the  county  of  Albany.     Other 
counties  respectable  for  their  wealth,  number  and  influence,  fol- 
lowed the  example. 

The  delegates  to  the  state  convention  thus  chosen  were  generally   Character 
favorable  to  the  nomination  of  Mr.  Clinton;    and  like  the  dele-   °  ^  ^    ^^' 

'  gates. 

gates  from  the  county  of  Albany  were  composed  of  republicans 
of  high  standing  and  character.  From  the  county  of  Oneida, 
Nathan  WiUiams,  and  Henry  Huntington  were  chosen,  and  from 
the  county  of  Ontario,  Gideon  Granger,  the  late  eminent  and  dis- 
tinguished postmaster  general,  was  a  delegate. 

One  difficulty  which  Mr.  Van  Buren  and  his  friends  had  to   Prelimina- 
encounter,  was  to  fix  upon  an  opposing  candidate  to  Mr.  Clinton  caucus 
in  caucus.     Who  was  the  man  that  would  accept  the  post  and 
combine  the  greatest  strength,  was  a  question  not  easy  to  be  judi- 
ciously decided.     They  finally  fixed  on  Judge  Yates.     He  had 


114  American   Government  and   Politics 

adhered  to,  and  defended  Mr.  Clinton  long  after  he  had  been 
denounced  by  Judge  Spencer.  On  his  circuit  the  preceding  sum- 
mer, he  had  in  various  places  urged  his  friends  to  support  the  nomi- 
nation of  CUnton.  It  was  supposed  that  the  known  friendship  of 
Judge  Yates  to  Mr.  C.  would  induce  some  of  the  latter  to  support 
the  former;  but  a  different  result  was  produced.  Men  felt  in- 
dignant when  they  were  invited  to  support  a  man  in  opposition, 
who  had  himself  taken  pains  and  been  instrumental  in  convincing 
them  that  Clinton  ought  to  be  chosen  governor.  A  day  or  two 
before  the  meeting  of  the  state  convention.  Judge  Yates  positively 
declined  being  a  candidate.  This  produced  some  confusion  in 
the  ranks  of  the  opposition,  but  they  finally  fixed  upon  Gen.  Peter 
B.  Porter  as  their  candidate. 

The  state  convention  was  held  at  the  capitol  on  the  25th  March. 
Upon  balloting  for  a  candidate,  Mr.  Clinton  received  eighty-five 
votes  and  Gen.  Porter  forty-one.  It  was  understood  that  sixty 
members  and  twenty-five  delegates  voted  for  Mr.  Clinton,  and 
thirty-three  members  and  seven  delegates  for  his  opponent. 

47.    The  Congressional  Caucus  for  Nominating  Presidential  Can- 
didates * 

In  1800,  the  Federalists  in  Congress  held  a  secret  conference  to 
agree  on  candidates  and  thus  present  a  solid  front  to  the  Jeffer- 
sonians.  This  scheme,  denounced  at  the  time  by  the  opposite 
party,  was,  however,  speedily  adopted  as  a  regular  institution  for 
nominating  presidential  candidates,  and  it  lasted  until  the  election 
of  1824,  when  it  gave  way  before  the  popular  uprising  in  favor 
of  Andrew  Jackson.  The  following  official  record  of  the  caucus 
of  1824  shows  how  the  system  worked  :  — 

Chamber  of  the  House  of  Representatives  of  the  United  States. 

February  14,  1824. 
At  a  meeting  of  the  republican  members  of  Congress,  assembled 
this  evening,  pursuant  to  public  notice,  for  the  purpose  of  recom- 
mending to  the  people  of  the  United  States  suitable  persons  to  be 


The  Development  of  Party   Machinery       115 

supported  at  the  approaching  election,  for  the  offices  of  president 
and  vice-president  of  the  United  States : 

On  motion  of  Mr.  James  Barbour,  of  Virginia  — 

Mr.  Benjamin  Ruggles,  a  senator  from  the  state  of  Ohio,  was 
called  to  the  chair,  and  Mr.  Ela  Collins,  a  representative  from 
the  state  of  New  York,  was  appointed  secretary. 

Resolved,  That  this  meeting  do  now  proceed  to  designate,  by   The  ballot- 
ballot,  a  candidate  for  president  of  the  United  States.  President. 

Determined  in  the  affirmative. 

On  motion  of  Mr.  Van  Buren  of  New  York,  it  was 

Resolved,  That  the  Chairman  call  up  the  republican  members 
of  congress  by  states,  in  order  to  receive  their  respective  ballots. 

Whereupon  the  Chairman  proceeded  to  a  call,  and  it  appeared 
the  following  members  were  present.  .  .  . 

Mr.  Bassett,  of  Virginia,  and  Mr.  Cambreleng,  of  New  York,    Counting 
were  appointed  tellers,  and,  on  counting  the  ballots,  it  appeared 
that 

William  H.  Crawford  had  sixty-four  votes, 

John  Quincy  Adams  two  votes, 

Andrew  Jackson  one  vote,  and 

Nathaniel  Macon  one  vote. 

Mr.  Dickinson  of  New  Jersey  then  submitted  the  following  The  vice- 

presidential 

resolution,  which  was  agreed  to :  nomination. 

Resolved,  That  this  meeting  do  now  proceed  to  designate,  by 
ballot,  a  candidate  for  the  office  of  vice  president  of  the  United 
States. 

Mr.  Van  Buren,  of  New  York,  then  stated  that  he  was  authorized 
to  say  that  the  vice  president  having,  some  time  since,  determined 
to  retire  from  public  life,  did  not  wish  to  be  regarded  by  his  friends 
as  a  candidate  for  reelection  to  that  office. 

On  counting  the  ballots,  it  appeared  that  Albert  Gallatin,  of 
Pennsylvania,  had  fifty -seven  votes;  John  Q.  Adams  of  Massa- 
chusetts, one  vote;  William  Eustis  of  Massachusetts,  one  vote; 
Samuel  Smith  of  Maryland,  one  vote;  William  King  of  Maine, 
one  vote ;  Richard  Rush  of  Pennsylvania,  one  vote ;  Erastus  Root 


ii6 


American   Government  and   Politics 


of  New  York,  two  votes;    John  Tod  of  Pennsylvania,  one  vote; 
and  Walter  Lowrie  of  Pennsylvania,  one  vote. 

And,  thereupon,  Mr.  Clark  of  New  York  submitted  the  follow- 
ing resolution,  to  wit : 

Resolved,  As  the  sense  of  this  meeting  that  William  H.  Crawford, 
of  Georgia,  be  recommended  to  the  people  of  the  United  States  as 
a  proper  candidate  for  the  office  of  president,  and  Albert  Gallatin, 
of  Pennsylvania  for  the  office  of  vice  president  of  the  United  States, 
for  four  years  from  the  4th  of  March  1825. 

Resolved,  that,  in  making  the  foregoing  recommendation,  the 
members  of  this  meeting  have  acted  in  their  individual  characters, 
as  citizens;  that  they  have  been  induced  to  this  measure  from  a 
deep  and  settled  conviction  of  the  importance  of  union  among 
republicans,  throughout  the  United  States,  and,  as  the  best  means 
of  collecting  and  concentrating  the  feelings  and  wishes  of  the  people 
of  the  union,  upon  this  important  subject.  The  question  being  put 
upon  these  resolutions,  they  were  unanimously  agreed  to. 

Mr.  Holmes  of  Maine  then  moved  that  the  proceedings  of  the 
meeting  be  signed  by  the  chairman  and  secretary,  and  published, 
together  with  an  address  to  the  people  of  the  United  States,  to 
be  prepared  by  a  committee  to  be  appointed  for  the  purpose. 

On  motion,  it  was  ordered  that  this  committee  consist  of  the 
chairman  and  secretary  of  the  convention,  together  with  the  gentle- 
men whose  names  were  signed  to  the  notice  calling  the  meeting. 

On  motion,  it  was  further 

Resolved,  That  the  chairman  and  secretary  inform  the  gentlemen 
nominated  for  the  offices  of  president  and  vice  president  of  their 
nomination,  and  learn  from  them  whether  they  are  willing  to  serve 
in  the  said  offices,  respectively. 

Benjamin  Ruggles,  Chairman. 

E.  Collins,  Secretary. 


48.    The  Tennessee  Legislature  Protests  against  the  Caucus 

Jackson's   followers    were    enraged  with    the    caucus    system, 
because  they  believed  that  he  was  the  real  choice  of  the  nation  and 


The   Development  of  Party   Machinery       117 


had  been  excluded  from  the  presidency  by  the  action  of  his  per- 
sonal enemies  at  Washington.  In  the  legislature  of  Jackson's  state, 
the  following  protest  against  the  caucus  system  was  introduced, 
by  Mr.  Grundy,  a  Jackson  man :  — 

The  general  assembly  of  the  state  of  Tennessee  has  taken  into 
consideration  the  practice  which,  on  former  occasions,  has  prevailed 
at  the  city  of  Washington,  of  members  of  the  congress  of  the  United 
States  meeting  in  caucus,  and  nominating  persons  to  be  voted  for 
as  president  and  vice-president  of  the  United  States:  and,  upon 
the  best  view  of  the  subject  which  this  general  assembly  has  been 
enabled  to  take,  it  is  beUeved  that  the  practice  of  congressional 
nominations  is  a  violation  of  the  spirit  of  the  constitution  of  the 
United  States. 

That  instrument  provides  that  there  shall  be  three  separate  and 
distinct  departments  of  the  government,  and  great  care  and  cau- 
tion seems  to  have  been  exercised  by  its  framers  to  prevent  any  one 
department  from  exercising  the  smallest  degree  of  influence  over 
another;  and  such  solicitude  was  felt  on  this  subject,  that,  in  the 
second  section  of  the  second  article,  it  is  expressly  declared,  "That 
no  senator  or  representative,  or  person  holding  an  office  of  trust  or 
profit  under  the  United  States,  shall  be  appointed  an  elector." 
From  this  provision,  it  is  apparent  that  the  convention  intended 
that  the  members  of  congress  should  not  be  the  principal  and 
primary  agents  or  actors  in  electing  the  president  and  vice-president 
of  the  United  States  —  so  far  from  it,  they  are  expressly  disciuali- 
fied  from  being  placed  in  a  situation  to  vote  for  those  high  ofliccrs. 
Is  there  not  more  danger  of  undue  inlluence  to  be  apprehended 
when  the  members  of  congress  meet  in  caucus  and  mutually  and 
solemnly  pledge  themselves  to  support  the  individuals  who  may 
have  the  highest  number  of  votes  in  such  meeting  than  there  would 
be  in  permitting  them  to  be  eligible  to  the  appointment  of  electors? 
In  the  latter  case,  a  few  characters,  rendered  ineligible  by  the 
constitution,  might  succeed;  but,  in  the  former,  a  powerful  com- 
bination of  influential  men  is  formed,  wlio  may  fix  upon  the  Amer- 
ican people  their  highest  officers  ajjainst  the  consent  of  a  clear 


The  caucus 
contrary  to 
the  Consti- 
tution. 


The  princi- 
ples of  the 
separation 
of  powers 
violated. 


ii8 


American  Government  and  Politics 


majority  of  the  people  themselves;  and  this  may  be  done  by  the 
very  men  whom  the  constitution  intended  to  prohibit  from  acting 
on  the  subject.  Upon  an  examination  of  the  constitution  of  the 
United  States,  there  is  but  one  case  in  which  the  members  of 
congress  are  permitted  to  act,  which  is  in  the  event  of  a  failure  to 
make  an  election  by  the  electoral  colleges;  and  then  the  members 
of  the  house  of  representatives  vote  by  states.  With  what  propriety 
the  same  men,  who,  in  the  year  1825,  may  be  called  on  to  discharge 
a  constitutional  duty,  can,  in  the  year  1824,  go  into  a  caucus  and 
pledge  themselves  to  support  the  men  then  nominated,  cannot  be 
discerned,  especially  when  it  might  so  happen  that  the  persons 
thus  nominated,  could  under  any  circumstances,  obtain  a  single 
vote  from  the  state  whose  members  stand  pledged  to  support 
them.    .    .    . 

This  practice  is  considered  objectionable  on  other  accounts: 
so  long  as  congress  is  considered  as  composed  of  the  individuals 
on  whom  the  election  depends,  the  executive  will  is  subjected 
to  the  control  of  that  body,  and  it  ceases,  in  some  degree,  to  be  a 
separate  and  independent  branch  of  the  government;  and  an  ex- 
pectation of  executive  patronage  may  have  an  unhappy  influence 
on  the  deliberations  of  congress. 

Upon  a  review  of  the  whole  question,  the  following  reasons  which 
admit  of  much  amplification  and  enlargement,  more  than  has  been 
urged  in  the  foregoing,  might  be  conclusively  relied  on,  to  prove 
the  impolicy  and  unconstitutionality  of  the  congressional  nomina- 
tions of  candidates  for  the  presidency  and  vice-presidency  of  the 
United  States:  ist.  A  caucus  nomination  is  against  the  spirit  of 
the  constitution.  2d.  It  is  both  inexpedient  and  impolitic.  3d. 
Members  of  congress  may  become  the  final  electors,  and  therefore 
ought  not  to  ])rejudge  the  case  by  pledging  themselves  previously 
to  support  particular  candidates.  4th.  It  violates  the  equality 
intended  to  be  secured  by  the  constitution  to  the  weaker  states. 
5th.  Caucus  nominations  may,  in  time,  (by  the  interference  of 
the  states),  acquire  the  force  of  precedents  and  become  authori- 
tative, and  thereby  endanger  the  liberties  of  the  American  people. 


The  Development  of  Party   Machinery       119 

49.    Jackson^ s  First  National  Convention 
The  first  national  party  convention  was  held  at  Baltimore  in   Circum- 


stances 

under 


1 83 1  by  the  Anti-Masonic  party,  which  sprang  up  suddenly  in 
opposition,  to  Free  Masonry  and  as  speedily  disappeared.  The  ^'hi'ch  the 
second  convention  was  held  in  the  same  year  by  the  Anti-Jack-  convention 
sonians,  who  nominated  Clay  and  assumed  the  name  of  National  was  called. 
Republicans.  It  was,  of  course,  settled  that  Jackson  should  be  his 
own  successor;  but  he  was  extremely  anxious  to  have  his  friend 
Van  Buren  nominated  for  the  vice  presidency.  Accordingly,  he 
contrived,  through  his  agent,  Amos  Kendall,  to  have  a  national  con- 
vention called  "spontaneously"  by  his  supporters  in  the  New 
Hampshire  legislature.  On  this  call  an  assembly  of  delegates  "fresh 
from  the  people"  met  at  Baltimore  and  nominated  Van  Buren, 
as  had  been  contemplated.  The  purpose  of  the  assembly  was 
set  forth  by  Mr.  Sumner  in  the  opening  address,  which  follows :  — 

Gentlemen  —  The  proposition  for  calling  a  general  convention  The  origin 
of  delegates,  to  act  on  the  nomination  of  a  candidate  for  president,  vention 
and  to  select  a  suitable  candidate  for  the  office  of  vice-president  of 
the  United  States,  originated  in  the  state  of  New  Hampshire, 
by  the  friends  of  democracy  in  that  state ;  and  it  appears  that  the 
proposition,  although  opposed  by  the  enemies  of  the  democratic 
party,  has  found  favor  in  nearly  and  perhaps  all  the  states  in  the 
union;  so  that  we  find  collected  at  this  time  and  place  a  greater 
and  more  general  delegation  from  the  people  than  was  ever  before 
assembled  upon  an  occasion  of  the  sort. 

The  object  of  the  representatives  of  the  people  of  New  Hamp-   The  purpose 
shire  who  called  this  convention  was,  not  to  impose  on  the  people,   j^g  a  union 
as  candidates  for  either  of  the  two  first  offices  in  this  government,   of  all  ele- 
any  local  favorite ;  but  to  concentrate  the  opinions  of  all  the  states. 
They  believed  that  the  great  body  of  the  people,  having  but  one 
common  interest,  can  and  will  unite,  in  the  support  of  important 
principles;    that  the  operation  of  the  machinery  of  government 
confined  within  its  legitimate  sphere  is  the  same  in  the  north,  south, 
east  and  west;   that  although  designing  men,  ever  since  the  adop- 
tion of  the  constitution,  have  never  ceased  in  their  exertions  to 
excite  sectional  feeling  and    sectional  interest,  and   to  array  one 


ments. 


I  20 


American   Government  and  Politics 


portion  of  the  country  against  another,  the  great  and  essential 
interests  of  all  are  the  same.  They  beUeved  that  the  coming  to- 
gether of  representatives  of  the  people  from  the  extremity  of  the 
union,  would  have  a  tendency  to  soothe,  if  not  to  unite, ^the  jarring 
interests,  which  sometimes  come  in  conflict,  from  the  different 
sections  of  the  country. 

They  considered  the  individuals,  who  might  be  selected  as  can- 
didates for  office,  to  be  of  much  less  consequence  than  the  prin- 
ciple on  which  they  are  designated ;  they  thought  it  important  to 
ascertain  the  fact,  whether  the  people  themselves,  or  those  who 
would  frustrate  the  voice  of  the  people,  should  succeed  in  our 
elections.  They  believed  that  the  example  of  this  convention 
would  operate  favorably  in  future  elections ;  that  the  people  would 
be  disposed,  after  seeing  the  good  effects  of  this  convention  in 
conciliating  the  different  and  distant  sections  of  the  country,  to 
continue  this  mode  of  nomination. 


50.    Benton'' s  Criticism  of  the  Convention  System 

The  convention  system  which  appeared  to  be  such  a  popular 
institution,  compared  with  the  congressional  caucus,  nevertheless 
encountered  the  same  objections;  namely,  that  it  was  a  mode  by 
which  a  small  group  of  politicians  could  control  presidential  nom- 
inations. Senator  Benton  advanced  this  view  shortly  after  the 
convention  had  been  adopted  as  a  permanent  institution. 

This  presidential  election  of  1824  is  remarkable  under  another 
aspect  —  as  having  put  an  end  to  the  practice  of  caucus  nomina- 
tions for  the  Presidency  by  members  of  Congress.  This  mode  of 
concentrating  public  opinion  began  to  be  practised  as  the  eminent 
men  of  the  Revolution,  to  whom  public  opinion  awarded  a  prefer- 
ence, were  passing  away,  and  when  new  men,  of  more  equal  pre- 
tensions, were  coming  upon  the  stage.  It  was  tried  several  times 
with  success  and  general  approbation,  public  sentiment  having 
been  followed,  and  not  led,  by  the  caucus.  It  was  attempted  in 
1824,  and  failed,  the  friends  of  Mr.  Cra\vford  only  attending  — 
others  not  attending,  not  from  any  repugnance  to  the  practice, 


The   Development  of  Party    Machinery        121 

as  their  previous  conduct  had  shown,  but  because  it  was  known 
that  Mr.  Crawford  had  the  largest  number  of  friends  in  Congress 
ancl,  would  assuredly  receive  the  nomination.  All  the  rest,  there- 
fore, refused  to  go  into  it:  all  joined  in  opposing  the  "caucus 
candidate,"  as  Mr.  Crawford  was  called;  all  united  in  painting 
the  intrigue  and  corruption  of  these  caucus  nominations,  and  the 
anomaly  of  members  of  Congress  joining  in  them.  By  their  joint 
efforts  they  succeeded,  and  justly  in  the  fact  though  not  in  the 
motive,  in  rendering  these  Congress  caucus  nominations  odious 
to  the  people,  and  broke  them  down. 

They  were  dropped,  and  a  different  mode  of  concentrating  The  con- 
public  opinion  was  adopted  —  that  of  party  nominations  by  con-  degenerates 
ventions  of  delegates  from  the  States.  This  worked  well  at  first,  into  an  office 
the  will  of  the  people  being  strictly  obeyed  by  the  delegates,  and  device^ 
the  majority  making  the  nomination.  But  it  quickly  degenerated, 
and  became  obnoxious  to  all  the  objections  to  Congress  caucus 
nominations,  and  many  others  besides.  Members  of  Congress 
still  attended  them,  either  as  delegates  or  as  lobby  managers. 
Persons  attended  as  delegates  who  had  no  constituency.  Dele- 
gates attended  upon  equivocal  appointments.  Double  sets  of 
delegates  sometimes  came  from  the  State,  and  either  were  ad- 
mitted or  repulsed,  as  suited  the  views  of  the  majority.  Proxies 
were  invented.  Many  delegates  attended  with  the  sole  view  of 
establishing  a  claim  for  office,  and  voted  accordingly.  The  two- 
thirds  rule  was  invented,  to  enable  the  minority  to  control  the  ma- 
jority; and  the  whole  proceeding  became  anomalous  and  irre- 
sponsible, and  subversive  of  the  will  of  the  people,  leaving  them 
no  more  control  over  the  nomination  than  the  subjects  of  kings 
have  over  the  birth  of  the  child  which  is  born  to  rule  over  them. 
King  Caucus  is  as  potent  as  any  other  king  in  this  respect;  for 
whoever  gets  the  nomination  —  no  matter  how  effected  —  be- 
comes the  candidate  of  the  party,  from  the  necessity  of  union 
against  the  op[)osite  party,  and  from  the  indisposition  of  the  great 
States  to  go  into  the  House  of  Representatives  to  l)e  balanced  by 
the  small  ones. 


122 


American   Government  and  Politics 


The  selec- 
tion of  the 
President 
has  gone  to 
an  irrespon- 
sible 
assembly. 


This  is  the  mode  of  making  Presidents,  practised  by  both  parties 
now.  It  is  the  virtual  election  !  and  thus  the  election  of  the  Presi- 
dent and  Vice-President  of  the  United  States  has  passed  —  not 
only  from  the  college  of  electors  to  which  the  constitution  confided 
it,  and  from  the  people  to  whom  the  practice  under  the  constitu- 
tion gave  it,  and  from  the  House  of  Representatives  which  the  con- 
stitution provided  as  ultimate  arbiter  —  but  has  gone  to  an  anom- 
alous irresponsible  body,  unknown  to  law  or  constitution,  unknown 
to  the  early  ages  of  our  government,  and  of  which  a  large  propor- 
tion of  the  members  composing  it,  and  a  much  larger  proportion 
of  interlopers  attending  it,  have  no  other  view  either  in  attending 
or  in  promoting  the  nomination  of  any  particular  man,  than  to  get 
one  elected  who  will  enable  them  to  eat  out  of  the  public  crib 
—  who  will  give  them  a  key  to  the  public  crib. 

The  evil  is  destructive  to  the  rights  and  sovereignty  of  the  people, 
and  to  the  purity  of  elections.  The  remedy  is  in  the  application 
of  the  democratic  principle  —  the  people  to  vote  direct  for  Presi- 
dent and  Vice-President;  and  a  second  election  to  be  held  imme- 
diately between  the  two  highest,  if  no  one  has  a  majority  of  the 
whole  number  on  the  first  trial.  But  this  would  require  an  amend- 
ment of  the  constitution,  not  to  be  effected  but  by  a  concurrence 
of  two-thirds  of  each  house  of  Congress,  and  the  sanction  of  three- 
fourths  of  the  States  —  a  consummation  to  which  the  strength  of 
the  people  has  not  yet  been  equal,  but  of  which  there  is  no  reason 
to  despair.  The  great  parliam'entary  reform  in  Great  Britain 
was  only  carried  after  forty  years  of  continued,  annual,  persevering 
exertion.  Our  constitutional  reform,  in  this  point  of  the  presi- 
dential election,  may  require  but  a  few  years;  in  the  meanwhile 
I  am  for  the  people  to  select,  as  well  as  elect,  their  candidates,  and 
for  a  reference  to  the  House  to  choose  one  out  of  three  presented 
by  the  people,  instead  of  a  caucus  nomination  of  whom  it  pleased. 
The  House  of  Representatives  is  no  longer  the  small  and  dangerous 
electoral  college  that  it  once  was.  Instead  of  thirteen  States  we 
now  have  thirty-one ;  instead  of  sixty-five  representatives,  we  have 
now  about  two  hundred.     Responsibihty  in  the  House  is  now 


The   Development  of  Party    Machinery       123 

well-established  and  political  ruin,  and  personal  humiliation, 
attend  the  violation  of  the  will  of  the  State.  No  man  could  be 
elected  now,  or  endeavor  to  be  elected  (after  the  experience  of 
1800  and  1824)  who  is  not  at  the  head  of  the  Ust,  and  a  choice  of 
the  majority  of  the  Union.  The  lesson  of  those  times  would  deter 
imitation  and  the  democratic  principle  would  again  crush  all  that 
were  instrumental  in  thwarting  the  public  will.  There  is  no  longer 
the  former  danger  from  the  House  of  Representatives,  nor  anything 
in  it  to  justify  a  previous  resort  to  such  assemblages  as  our  national 
conventions  have  got  to  be.  The  House  is  legal  and  responsible, 
which  the  convention  is  not,  with  a  better  chance  for  integrity, 
as  having  been  actually  elected  by  the  people ;  and  more  restrained 
by  position,  by  public  opinion,  and  a  clause  in  the  constitution, 
from  the  acceptance  of  office  from  the  man  they  elect.  .  .  . 

51.    Lincoln'' s  Defense  of  the  Convention  as  a  State  Party  Insti- 
tution 

The  state  convention,  which  began  to  supersede  the  legislative 
caucus  during  the  Jackson  contests,  especially  in  the  East,  was  for 
a  time  regarded  with  dislike  by  many  political  leaders  in  the  South 
and  West,  but  at  last  they  were  brought  to  emjiloy  it  for  reasons 
that  are  nowhere  more  cogently  set  forth  than  in  a  paper  drafted 
by  Lincoln  in  1843  in  defense  of  the  adoption  of  the  system  by  the 
Whigs  of  Illinois. 

The  sixth  resolution  recommends  the  adoption  of  the  convention   The  con- 
system  for  the  nomination  of  candidates.     This  we  believe  to  ])e   ^^^^^  j^^ 
of  the  very  first  importance.     Whether  the  system  is  right  in  itself   adopud  in 
we  do  not  stop  to  inquire;    contenting  ourselves  with  trying  to 
show  that  while  our  opponents  use  it,  it  is  madness  in  us  not  to 
defend  ourselves  with  it.     Experience  has  shown  that  we  cannot 
successfully  defend  ourselves  without  it.     For   example,  look   at 
the  elections  of  last  year.     Our  candidate  for  governor,  with  the 
approbation  of  a  large  portion  of  the  party,  took  the  field  without 
a  nomination,  and  in  ojjen  opi)osition  to  the  system.     Wherever 
in  the  counties  the  Whigs  had  held  conventions  and  nominated 


124 


American   Government  and   Politics 


candidates  for  the  legislature,  the  aspirants  who  were  not  nomi- 
nated were  induced  to  rebel  against  the  nominations,  and  to  become 
candidates,  as  is  said,  "on  their  own  hook."  And,  go  where  you 
would  into  a  large  Whig  county,  you  were  sure  to  find  the  Whigs 
not  contending  shoulder  to  shoulder  against  the  common  enemy, 
but  divided  into  factions,  and  fighting  furiously  with  one  another. 
The  election  came,  and  what  was  the  result?  The  governor 
beaten  —  the  Whig  vote  being  decreased  many  thousands  since 
1840,  although  the  Democratic  vote  had  not  increased  any. 
Beaten  almost  everywhere  for  members  of  the  legislature,  —  Taze- 
well with  her  four  hundred  Whig  majority,  sending  a  delegation 
half  Democratic;  VermiUion  with  her  five  hundred,  doing  the 
same;  Coles,  with  her  four  hundred,  sending  two  out  of  three; 
and  Morgan,  with  her  two  hundred  and  fifty,  sending  three  out 
of  four,  —  and  this  to  say  nothing  of  the  numerous  less  glaring 
examples;  the  whole  winding  up  with  the  aggregate  number  of 
twenty-seven  Democratic  representatives  sent  from  Whig  counties. 
As  to  the  senators,  too,  the  result  was  of  the  same  character.  And 
it  is  most  worthy  to  be  remembered  that  of  all  the  Whigs  in  the 
State  who  ran  against  the  regular  nominees,  a  single  one  only  was 
elected.  Although  they  succeeded  in  defeating  the  nominees 
almost  by  scores,  they  too  were  defeated,  and  the  spoils  chuckingly 
borne  off  by  the  common  enemy. 

We  do  not  mention  the  fact  of  many  of  the  Whigs  opposing  the 
convention  system  heretofore  for  the  purpose  of  censuring  them. 
Far  from  it.  We  expressly  protest  against  such  a  conclusion. 
We  know  they  were  generally,  perhaps  universally,  as  good  and 
true  Whigs  as  we  ourselves  claim  to  be.  We  mention  it  merely 
to  draw  attention  to  the  disastrous  result  it  produced,  as  an  example 
forever  hereafter  to  be  avoided.  That  "union  is  strength"  is  a 
truth  that  has  been  shown,  illustrated,  and  declared  in  various 
ways  and  forms  in  all  the  ages  of  the  world.  That  great  fabulist 
and  philosopher,  ^Esop,  illustrated  it  by  his  fable  of  the  bundle  of 
sticks;  and  he  whose  wisdom  surpasses  that  of  all  philosophers 
has  declared  that  "a  house  divided  against  itself  cannot  stand." 


The   Development  of  Party   Machinery       125 

It  is  to  induce  our  friends  to  act  upon  this  important  and  univer- 
sally acknowledged  truth  that  we  urge  the  adoption  of  the  con- 
vention system.  Reflection  will  prove  that  there  is  no  other  way 
of  practically  applying  it.  In  its  application  we  know  there  will 
be  incidents  temporarily  painful ;  but,  after  all,  those  incidents  will 
be  fewer  and  less  intense  than  without  the  system.  If  two  friends 
aspire  to  the  same  oflice  it  is  certain  that  both  cannot  succeed. 
Would  it  not,  then,  be  much  less  painful  to  have  the  question  de- 
cided by  mutual  friends  some  time  before,  than  to  snarl  and  quarrel 
until  the  day  of  election,  and  then  both  be  beaten  by  the  common 
enemy  ? 

Before  leaving  this  subject,  we  think  proper  to  remark  that  we 
do  not  understand  the  resolution  as  intended  to  recommend  the 
application  of  the  convention  system  to  the  nomination  of  candi- 
dates for  the  small  oflices  no  way  connected  with  politics;  though 
we  must  say  we  do  not  perceive  that  such  an  application  of  it 
would  be  wrong. 

52.    The  Municipal  Boss 

The  maintenance  of  party  organization  and  the  conduct  of  How  the 
vigorous  campaigns  necessitate  leadership,  and  leadership  implies  ^°^*  ^^^ 
concentration  of  power  and  discipline  in  the  ranks.  In  every 
great  municipality,  where  there  are  numerous  ofifices  to  fill  and 
important  franchises  and  privileges  to  be  granted,  the  struggle 
for  the  possession  and  retention  of  political  power  is  intense,  and 
out  of  the  conflict  has  evolved  the  city  boss,  the  plenitude  of  whose 
power  is  thus  described  by  Mr.  Bourke  Cockran  in  a  speech  de- 
livered in  New  York  City  in  1898  in  defense  of  an  independent 
judiciary :  — 

Now  much  has  been  said  about  bosses  and  bossism.     But  it   E.xecutive 
must  be  remembered  that  we  are  not  assembled  here  to  contest   i...,„„  'I„,„„^ 
the  existence  of  a  boss-ship,  but  rather  to  prevent  the  extension   concen 
of  its  powers  over  the  judiciary.     All  the  powers  of  this  munici- 
pality, executive  and  legislative,  are  centred  in  the  hands  of  the 
individual  who  rules  the  destinies  of  the  local  Democracy,  in  the 
hands  of   the   boss,  and   there   it  will   remain  whatever  may  be 


evolved. 


tratcd  in  the 
boss. 


126 


American   Government  and   Politics 


The 
nominal 
and  the 
real  govern- 
ment. 


The  sources 
of  the  boss's 
power. 


the  outcome  of  this  canvass.  But  the  reserved  rights  of  the  citizen 
—  his  right  to  life,  liberty,  and  the  pursuit  of  happiness  —  are  still 
his  property  and  will  remain  his  property  just  so  long  as  there  are 
independent  judges  to  defend  them,  and  no  longer.  It  is,  there- 
fore, said  that  the  elementary  rights  of  citizenship,  the  right  of 
the  citizen  to  enjoy  his  individual  privileges  by  virtue  of  the  con- 
stitution under  which  he  lives,  or  the  necessity  of  his  seeking  them 
from  the  favor  of  the  boss,  exercised  and  dispensed  through  his 
dependents  on  the  bench,  all  depend  on  the  outcome  of  this  elec- 
tion. 

tWhat  is  this  government  of  ours?  Where  can  we  find  a  parallel 
to  it?  Nowhere  in  the  history  of  other  nations  or  other  races. 
A  nominal  government  is  installed  in  the  City  Hall;  the  actual 
government  is  administered  in  the  Democratic  club.  Officers  are 
sworn  and  appointed  to  discharge  certain  functions  and  to  a  cer- 
tain extent  they  do  discharge  them ;  but  outside  of  the  mere  routine 
duties  of  their  departments  every  exercise  of  discretionary  power 
is  controlled  and  prescribed  by  the  private  individual  who  is  not 
under  the  necessity  of  even  recording  his  decrees  or  acknowledging 
them. 

Ten  thousand  men  are  in  the  employment  of  the  City  Govern- 
ment, whose  appointments,  in  contemplation  of  the  law,  are  sup- 
posed to  spring  from  various  departments,  and  they  themselves 
are  supposed  to  be  responsible  for  these  departments,  but  each  one 
holds  his  office  through  the  favor,  or  at  least  the  forbearance  of 
the  boss,  whose  decrees,  though  unregistered,  are  more  powerful 
than  the  law,  yet  whose  existence  is  not  recognised  by  the  law, 
whose  nod  can  make  a  fortune  or  unmake  a  career.  Every  financial 
interest  in  this  great  city  courts  his  favor  and  dreads  his  hostility. 
If  to-day  he  was  to  declare  he  needed  a  million  dollars  for  political 
purposes,  before  next  Friday  two  million  dollars  would  be  fur- 
nished. If  anybody  refused  to  give  him  the  position  to  which  he 
thought  he  was  entitled,  that  person  might  find  an  engine  house 
erected  in  his  back  yard.  It  is  only  necessary  for  an  individual  to 
fall  under  his  displeasure  to  have  10,000  sets  of  wits  planning  to 


The  Development  of  Party   Machinery       127 

attract  the  favor  of  the  boss  by  annoying  the  object  of  his  resent- 
ment. 

It  is  only  fair  and  simple  justice  that,  I  should  say,  considering  The  self- 
his  opportunities,  considering  his  power,  that  our  boss  may  well  t^e^boss  ° 
declare  with  Lord  Clive,  ''Considering  my  opportunities,  I  am 
amazed  at  my  own  moderation."  Conceive  for  a  moment  his 
position,  and  then  tell  me  if  he  be  not  rather  entitled  to  praise  for 
forbearance  than  blame  for  excess.  I  do  not  beheve  in  boss  gov- 
ernment, but  I  believe  that  under  existing  conditions  it  is  inevitable. 
I  do  not  believe  that  the  boss  has  created  the  boss-ship  which  he 
administers.  He  is  not  the  source  of  it;  he  is  the  product  of  it. 
Why,  the  first  speech  I  ever  dehvered  in  Tammany  Hall,  I  de- 
livered against  the  measure  which  I  then  foresaw  would  result  in 
the  creation  of  despotic  powers  in  this  community,  to  which  I  now 
attribute  the  existence  of  the  boss-ship  as  it  flourishes  and  domi- 
nates us,  and  nobody  applauded  me  more  heartily  than  the  indi- 
vidual who  now  is  the  boss  of  Tammany  Hall.  I  do  not  want  any 
particular  change  in  bosses.  All  bosses  look  alike  to  me.  [Pro- 
longed laughter  and  applause.] 

Each  one  of  us  has  rights,  privileges,  immunities,  which  are  ours.  The  hope  is 
secure  from  the  interference  of  any  boss,  even  though  he  control 
the  executive  and  legislative  departments  of  the  city  and  state,  so 
long  as  the  judges  are  virtuous,  free,  and  independent.  But  let 
the  power  of  the  Idoss  be  extended  over  the  judiciary,  let  the  judges 
be  taught  that  their  prospects  of  re-nomination,  and  of  promotion 
depend  not  upon  loyalty  to  the  people,  but  upon  obedience  to  the 
boss  and  our  rights  and  our^  privileges  are  no  longer  ours  to  be 
enjoyed  while  we  obey  the  laws  of  our  country,  but  they  become 
the  favor  that  we  may  enjoy  from  the  forbearance  or  favor  of  a 
boss. 

53.    The  Parts  of  a  State  Political  Machine 

Before  the  first  half  of  the  nineteenth  century  had  elapsed,  that 
necessity  for  party  unity  against  the  common  enemy,  which  Lin- 
coln had  pointed  out  to  his  colleagues  in  Illinois,  led  to  an  organi- 


128  American  Government  and  Politics 

zation  of  a  system  of  committees  and  conventions  for  every  politi- 
cal subdivision  in  the  Union  in  which  officers  were  to  be  elected. 
It  has  often  happened  that  this  magnificent  organization  has  fallen 
into  the  hands  of  oflEice  seekers,  professional  politicians,  and  pri- 
vate persons  seeking  gain  at  public  expense.  The  following 
statement  from  the  pen  of  an  experienced  poUtical  worker,  Mr. 
Wanamaker,  indicates  the  manner  in  which  a  powerful  party 
machine  may  be  constructed  by  an  astute  leader :  — 

Part  A.  —  A  Republican  State  Committee,  which  in  every  part 
is  subjugated  to  serve  the  personal  interests  of  Senator  Quay  first 
and  the  party  next,  without  respect  to  the  will  of  the  people. 

Part  B.  —  Great  prestige  and  patronage,  controlled  by  Quay 
as  a  United  States  Senator,  with  two  votes,  his  own  and  the  other. 

Part  C.  —  Thirty  Congressmen,  with  their  secretaries,  sixty 
persons,  whose  salaries  aggregate  $180,000  annually,  and  -who  are 
responsible  to  the  machine  for  their  respective  districts. 

Part  D.  —  The  419  officers  and  employees  of  the  State  govern- 
ment, who  receive  in  salaries  $1,034,500  annually,  and  who  are 
selected  only  because  they  are  supposed  to  be  able  to  deliver  the 
votes  of  their  districts  to  any  one  the  Quay  machine  dictates. 
These  men  are  all  assessed  by  the  bosses. 

Part  E.  —  The  State  Senate,  with  every  officer,  from  president 
pro  tern  down  to  page-boys,  selected  to  do  the  machine's  bidding. 
The  expenses  of  the  Senate  last  year  were  $169,604. 

Part  F.  —  The  State  House  of  Representatives,  with  members, 
officers  and  employees,  257  in  number,  who  drew  $468,302  last 
year.  All  committees  are  selected  by  the  machine,  and  are  chair- 
mened  by  men  who  know  no  will  but  that  of  Senator  Quay.  Thus 
his  machine  absolutely  controls  all  revenue  and  tax  legislation. 

Part  G.  —  8122  post-offices,  with  salaries  amounting  to 
$3,705,446.  Most  postmasters  are  made  the  personal  agents  of 
the  machine  in  their  respective  towns. 

Part  H.  —  4149  county  offices,  a  majority  of  whom  are  con- 
trolled by  Senator  Quay's  machine,  whose  salaries  amount  to 
$5,000,000. 


The   Development  of  Party   Machinery       129 

Part  I.  —  The  Philadelphia  Mint,  with  438  employees,  who 
receive  in  yearly  salaries  $326,565. 

Part  J.  —  The  offices  of  Collector  of  Port,  with  400  employees, 
who  receive  in  salaries  $454,000. 

Part  K.  —  The  internal  revenue  offices,  with  281  employees, 
who  receive  in  salaries  $356,400. 

Part  L.  —  The  United  States  Circuit  and  District  Courts,  with 
forty-one  employees,  who  receive  in  salaries  $95,000. 

Part  M.  —  League  Island  Navy  Yard  and  Senate  arsenals,  with 
585  employees,  who  receive  in  salaries  $725,000,  making  a  total 
of  14,705  officers  and  employees,  who  receive  from  the  State  and 
and  National  Governments  $7,609,911  annually. 

Part  N.  —  The  thousands  of  trustees,  other  officials  and  em- 
ployees of  hospitals.  State  and  private;  State  prisons,  reform- 
atories. State  asylums,  charitable  homes,  State  colleges,  normal 
schools,  soldiers'  orphans'  schools,  scientific  institutes  and  mu- 
seums who  are  expected  to  support  the  machine,  or  the  appro- 
priations of  their  institutions  will  be  endangered. 

Part  O.  —  The  combined  capital  of  the  brewers  of  the  State, 
their  thousands  of  employees  and  dependent  patrons  whom  they 
control.  It  is  alleged  to  have  been  the  money  of  the  brewers  that 
paid  the  large  sums  during  Superintendent  of  Mint  Boyer's  ad- 
ministration as  State  Treasurer  necessary  to  make  good  shortages 
which  saved  the  machine  when  his  cashier,  Mr.  Livesey,  became 
a  fugitive  from  justice. 

Part  P.  —  Besides  the  amounts  paid  for  salaries  of  State  officers 
which  have  already  been  accounted  for,  the  Appropriation  Com- 
mittee, who  are  of  Quay's  personal  selection,  disburse  $10,000,000 
annually  to  schools,  hospitals,  penal  institutions,  etc.  The  bold 
manipulation  of  these  funds  for  the  benefit  of  the  machine  has 
educated  people  to  regard  moneys  received  for  these  purposes  as 
personal  contributions  from  Senator  Quay,  in  return  for  which 
they  must  render  help  to  his  machine. 

Part  Q.  —  The  State  Liquor  League,  whose  members  are  in 
every  city,  town,  hamlet,  and  crossroads  throughout  the  State, 

K 


130  American  Government  and  Politics 

and  who  maintain  a  permanent  State  organization,  having  head- 
quarters and  representatives  at  Harrisburg  during  the  sessions  of 
the  Legislature,  are  always  for  Senator  Quay's  machine,  and  form 
an  important  part  of  the  machine's  operations. 

Part  R.  —  A  large  number  of  the  Common  Pleas  Judges 
throughout  the  State,  who  use  their  license-granting  power  for 
the  benefit  of  the  machine  by  rewarding  those  faithful  to  the  cause 
of  Quay,  and  punishing  those  opposed  to  the  machine. 

Part  S.  —  The  millions  of  withheld  school  and  personal  tax 
moneys  that  are  used  to  further  the  interests  of  the  machine.  At 
three  per  cent  interest,  the  rate  that  Smedley  Darlington  testified 
last  week,  under  oath,  his  trust  company  paid,  the  machine  has 
taken  $2,500,000  of  your  money  since  Senator  Quay  began  his  reign. 

Part  T.  —  The  hundreds  of  subservient  newspapers  who  are 
recipients  of  machine  favors,  with  their  army  of  newsgatherers 
and  correspondents,  who  are  forced  to  chloroform  public  senti- 
ment, and  hide  the  iniquities  of  the  machine. 

The  principal  allies  and  partners  of  the  machine  are  the  corpo- 
rations. The  15,000  national  and  State  office-holders,  and  the 
thousands  of  other  officials  connected  with  State  institutions,  form 
a  small  part  of  the  whole  number  of  obedient  machine  men  who 
are  constantly  at  the  command  of  Senator  Quay,  the  admitted  boss 
of  the  machine.  The  corporation  employees  of  the  State  who  are 
controlled  for  Quay's  use  increase  the  number  to  the  proportions 
of  a  vast  army. 

The  steam  railroads  of  the  State  employ  85,117  men,  and  pay 
them  annually  in  wages  $49,400,000.  Of  this  number,  the  Penn- 
sylvania and  Reading  Railroads  furnish  37,911  and  16,083  men, 
respectively.  The  Vanderbilt  system  furnishes  12,432  men;  the 
Baltimore  and  Ohio,  3615;  the  New  Jersey  Central,  2864;  the 
Lehigh  Valley,  12,062;  and  the  Delaware,  Lackawanna,  and 
Western,  2150.  The  great  street  railways  of  the  State,  which 
have  received  valuable  legislative  concessions  for  nothing,  give 
the  machine  loyal  support  with  12,079  employees  who  are  paid  in 
salaries  $6,920,692  every  year. 


The  Development  of  Party   Machinery       131 

That  monopoly  of  monopolies,  the  Standard  Oil  Company,  pays 
annually  $2,500,000  to  its  3000  employees,  who  are  taught  fidel- 
ity to  Senator  Quay's  machine.  The  Bethlehem  Iron  Works, 
whose  armor  plates  are  sold  to  the  Government  for  nearly  double 
the  contract  price  offered  to  foreign  countries,  influence  their 
employees  to  such  an  extent  that  in  the  city  of  Bethlehem  it  has 
been  found  difficult  to  get  men  to  stand  as  anti-Quay  delegates. 

The  thousands  of  working-men  of  the  Carnegie  Iron  Works,  it 
is  said,  are  marched  to  the  polls  under  the  supervision  of  superin- 
tendents and  foremen,  and  voted  for  Quay  candidates  under 
penalty  of  losing  their  jobs. 

The  great  express  companies  who  furnish  franks  to  machine 
followers,  one  of  whom  is  bossed  by  Senator  Piatt,  with  their 
thousands  of  men,  can  be  counted  on  for  great  service  to  the 
machine. 

The  telegraph  companies,  whose  State  officials  can,  it  is  said, 
be  found  at  the  inner  Quay  councils,  with  the  thousands  of  em- 
ployees distributed  at  every  important  point  throughout  the  State 
and  before  whom  a  large  share  of  the  important  news  must  pass, 
are  one  of  the  most  dangerous  parts  of  the  Quay  machine. 

54.    The  Political  Party  Included  in  the  Legal  Framework  of 

Government 

Political  parties  grew  up  as  purely  voluntary  groups  seeking 
to  secure  possession  of  the  offices  of  government ;  and  in  spite  of 
the  many  abuses  which  early  crept  in,  it  was  steadily  maintained 
that  the  goyernment  had  no  business  to  interfere  with  the  organiza- 
tion and  management  of  such  purely  private  associations.  It  was 
found  by  experience,  however,  that,  if  the  people  were  to  retain 
control  of  the  government,  they  must  establish  a  regular  legal 
control  of  parties.  Thus  the  party  has  practically  ceased  to  be  an 
"extra-legal"  institution.  In  the  preamble  to  the  recent  Oregon 
law  regulating  primaries,  the  operations  of  parties  are  declared 
to  have  a  significance  almost  erjual  to  that  of  the  state  government 
itself.* 

'  See  below  for  primary  legislation,  p.  586. 


132 


American  Government  and  Politics 


Under  our  form  of  government,  political  parties  are  useful  and 
necessary  at  the  present  time.  It  is  necessary  for  the  public  wel- 
fare and  safety  that  every  practical  guaranty  shall  be  provided  by 
law  to  assure  the  people  generally,  as  well  as  the  members  of  the 
several  parties,  that  political  parties  shall  be  fairly,  freely,  and 
honestly  conducted,  in  appearance  as  well  as  in  fact.  The  method 
of  naming  candidates  for  elective  public  offices  by  political  parties 
and  voluntary  political  organizations  is  the  best  plan  yet  found  for 
placing  before  the  people  the  names  of  qualified  and  worthy  citizens 
from  whom  the  electors  may  choose  the  officers  of  our  government. 
The  government  of  our  State  by  its  electors  and  the  government  of 
a  political  party  by  its  members  are  rightfully  based  on  the  same 
general  principles.  Every  political  party  and  every  volunteer  po- 
litical organization  has  the  same  right  to  be  protected  from  the 
interference  of  persons  who  are  not  identified  with  it  as  its  known 
and  publicly  avowed  members,  that  the  government  of  the  State 
has  to  protect  itself  from  the  interference  of  persons  who  are  not 
known  and  registered  as  its  electors. 

It  is  as  great  a  wrong  to  the  people,  as  well  as  to  the  members 
of  a  political  party,  for  one  who  is  not  known  to  be  one  of  its 
members  to  vote  or  take  any  part  at  any  election  or  other  pro- 
ceedings of  such  political  party,  as  it  is  for  one  who  is  not  a 
qualified  and  registered  elector  to  vote  at  any  State  election  or 
take  any  part  in  the  business  of  the  State.  Every  political  party 
and  voluntary  political  organization  is  rightfully  entitled  to  the 
sole  and  exclusive  use  of  every  word  of  its  official  name.  The 
people  of  the  State  and  the  members  of  every  political  party 
and  voluntary  political  organization  are  rightfully  entitled  to  know 
that  every  person  who  offers  to  take  any  part  in  the  affairs  or  busi- 
ness of  any  political  party  or  voluntary  political  organization  in  the 
State  is  in  good  faith  a  member  of  such  party.  The  reason  for 
the  law  which  requires  a  secret  ballot  when  all  the  electors  choose 
their  officers,  equally  requires  a  secret  ballot  when  the  members  of 
a  party  choose  their  candidates  for  public  office.  It  is  as  neces- 
sary for  the  preservation  of  the  ijublic   welfare  and  safety  that 


The   Development  of  Party   Machinery       133 

there  shall  be  a  free  and  fair  vote  and  an  honest  count,  as  well  as 
a  secret  ballot  at  primary  elections,  as  it  is  that  there  shall  be 
a  free  and  fair  vote  and  an  honest  count  in  addition  to  the 
secret  ballot  at  all  elections  of  public  officers.  All  quaUfied  elect- 
ors who  wish  to  serve  the  people  in  an  elective  pubhc  office  are 
rightfully  entitled  to  equal  opportunities  under  the  law.  The 
purpose  of  this  law  is  better  to  secure  and  to  preserve  the  rights  of 
political  parties  and  voluntary  political  organizations,  and  their 
members  and  candidates,  and  especially  of  the  rights  above  stated. 


PART    II 

THE   FEDERAL    GOVERNMENT 

CHAPTER   VIII 


THE  GENERAL  PRINCIPLES  OF   THE  FEDERAL   SYSTEM  OF   GOVERN- 
MENT 

§^.    Original  Limitations  on  the  Pozver  of  the  Federal 
Government 

It  is  a  cardinal  doctrine  of  our  political  system  that  the  powers 
of  the  federal  government  are  limited  to  those  explicitly  granted 
in  the  Constitution  itself,  although  it  must  be  admitted  that  in 
practice  a  rather  genercxisJaterjjretation  has  been  placed  at  times 
on  several  of  the  clauses.  The  framers  of  the  Constitution,  Yxo-w- 
ever,  not  content  with  the  general  understanding  as  to  the  limited 
nature  of  the  federal  powers,  inserted  in  the  body  of  the  original 
document  a  number  of  provisions  definitely  forbidding  the  federal 
government  to  do  certain  things  and  regulating  its  exercise  of  the 
powers  granted. 

The  migration  or  importation  of  such  persons  as  any  of  the 
States  now  existing  shall  think  proper  to  admit  shall  not  be  pro- 
hibited by  the  Congress  prior  to  the  year  one  thousand  eight 
hundred  and  eight;  but  a  tax  or  duty  may  be  imposed  on  such 
importation,  not  exceeding  ten  dollars  for  each  person.* 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended 
unless  when,  in  case  of  rebellion  or  invasion,  the  public  safety  may 
require  it. 

No  bill  of  attainder,  or  ex  post  facto  law,  shall  l)e  passed. 

No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  pro- 

'  This  clause  was  inserted  for  the  tem])orary  protection  of  the  slave  trade. 

134 


The   Federal  System   of  Government  135 

portion  to  the  census  or  enumeration    hereinbefore  directed  to 
be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State. 

No  preference  shall  be  given  by  any  regulation  of  commerce  or 
revenue  to  the  ports  of  one  State  over  those  of  another;  nor  shall 
vessels  bound  to  or  from  one  State  be  obliged  to  enter,  clear,  or 
pay  duties  in  another. 

No  money  shall  be  drawn  from  the  treasury  but  in  consequence 
of  appropriations  made  by  law;  and  a  regular  statement  and  ac- 
count of  the  receipts  and  expenditures  of  all  pubhc  money  shall 
be  published  from  time  to  time. 

No  title  of  nobihty  shall  be  granted  by  the  United  States;  and 
no  person  holding  any  office  of  profit  or  trust  under  them  shall, 
without  the  consent  of  the  Congress,  accept  of  any  present,  emolu- 
ment, office,  or  title  of  any  kind  whatever,  from  any  king,  prince, 
or  foreign  state. 

Treason  against  the  United  States  shall  consist  only  in  levying   Definition  of 
war  against  them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort.     No  person  shall  be  convicted  of  treason  unless  on 
the  testimony  of  two  witnesses  to  the  same  overt  act,  or  on  con- 
fession in  open  court. 

The  Congress  shall  have  power  to  declare  the  punishment  of 
treason;  but  no  attainder  of  treason  shall  work  corruption  of 
blood,  or  forfeiture,  except  during  the  life  of  the  person  attainted. 

56.    Limitations  Imposed  on  the  Federal  Government  by  the  Amend- 
ments 

Notwithstanding  the  express  nature  of  the  powers  granted  to 
the  federal  government  and  the  precise  limitations  laid  down  in 
the  original  instrurpent,  it  was  feared  by  the  more  democratic 
leaders  like  Jenehj^^n  that  in  the  exercise  of  its  recognized  powers 
the  central  authorities  might  trench  upon  the  fundamental  ])rin- 
ciples  of  individual  liberty,  deemed  essential  to  the  existence  of  all 
free  governments.  Accordingly,  ten  amendments  especially  pro- 
tecting private  rights  against  federal  intervention  were  adopted  in 
1791,  and  to  these  an  eleventh  amendment  was  added  in  1798. 


treason. 


136 


American  Government  and   Politics 


Article  I 

Congress  shall  make  no  law  respecting  an  establishment  of  re- 
ligion, or  prohibiting  the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech,  or  of  the  press;  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  government  for  a  redress 
of  grievances. 

Article  II 

A  well-regulated  militia  being  necessary  to  the  security  of  a  free 
state,  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be 
infringed. 

Article  III 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house, 
without  the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a  man- 
ner to  be  prescribed  by  law. 

Article  IV 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures 
shall  not  be  violated,  and  no  warrants  shall  issue  but  upon  probable 
cause,  supported  by  oath  or  affirmation,  and  particularly  describ- 
ing the  place  to  be  searched,  and  the  persons  or  things  to  be  seized. 


Article  V 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia  when  in  active  service  in  time  of  war  or  public  danger;  nor 
shall  any  person  be  subject  for  the  same  ofifense  to  be  twice  put  in 
jeopardy  of  Ufe  or  limb;  nor  shall  be  compelled,  in  any  criminal 
case,  to  be  a  witness  against  himself;  nor  be  deprived  of  life, 
liberty,  or  property,  without  due  process  of  law;  nor  shall  private 
property  be  taken  for  public  use  without  just  compensation. 


The  Federal  System  of  Goverrynent         137 

Article  VI 

In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and 
district  wherein  the  crime  shall  have  been  committed,  which  dis- 
trict shall  have  been  previously  ascertained  by  law,  and  to  be  in- 
formed of  the  nature  and  cause  of  the  accusation ;  to  be  confronted 
with  the  witnesses  against  him;  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor;  and  to  have  the  assistance  of 
counsel  for  his  defense. 

Article  VII 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved; 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States  than  according  to  the  rules  of  the  com- 
mon law. 

Article  VIII 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishment  inflicted. 

Article  IX 

The  enumeration  in  the  Constitution  of  certain  rights  shall  not 
be  construed  to  deny  or  disparage  others  retained  by  the  people. 

Article  X 

The  powers  not  granted  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively  or  to  the  people. 

Article  XI 

The  judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  State,  or  by 
citizens  or  subjects  of  any  foreign  State. 


138 


American  Government  and  Politics 


The 

practical 
application 
of  the  theory. 


57.    The  Theory  of  the  Separation  of  Powers  in  the  Federal  Con- 
stitution * 

The  doctrine  that  the  three  departments  of  government  —  legis- 
lative, executive,  and  judicial  —  should  be  kept  separate  is  not  a 
mere  theory  of  American  poUtics;  it  is  a  rule  of  law  which  the 
Courts  will  apply  by  declaring  void  the  actions  of  one  department 
which  trench  on  the  clearly  determined  sphere  of  another.  In 
1876  the  House  of  Representatives  attempted  to  punish  a  Mr. 
Kilbourn  for  refusing  to  answer  certain  questions  put  by  a  House 
Committee  conducting  an  investigation  into  the  business  of  a 
private  concern  in  which  the  United  States  had  an  interest,  and 
the  Supreme  Court  released  Kilbourn  on  the  ground  that  the 
inquiry  was  judicial  and  not  legislative  in  character.  The  follow- 
ing statement  of  the  theory  is  taken  from  the  decision  of  the  Court 
in  this  case :  — 


The  sepa- 
ration of 
powers  one 
of  the  merits 
of  American 
government. 


Exceptions 
to  the  rule. 


It  is  believed  to  be  one  of  the  chief  merits  of  the  American 
system  of  written  constitutional  law,  that  all  the  powers  intrusted 
to  government,  whether  state  or  national,  are  divided  into  the 
three  grand  departments,  the  executive,  the  legislative  and  the 
judicial;  that  the  functions  appropriate  to  each  of  these  branches 
of  government  shall  be  vested  in  a  separate  body  of  public  serv- 
ants; and  that  the  perfection  of  the  system  requires  that  the 
lines  which  separate  and  divide  these  departments  shall  be  broadly 
and  clearly  defined.  It  is  also  essential  to  the  successful  work- 
ing of  this  system  that  the  persons  intrusted  with  power  in  any 
one  of  these  branches  shall  not  be  permitted  to  encroach  upon 
the  power  confided  to  the  others,  but  that  each  shall  by  the  law 
of  its  creation  be  limited  to  the  exercise  of  the.  powers  appro- 
priate to  its  own  department  and  no  other. 

To  these  general  propositions  there  are  in  the  Constitution  of 
the  United  States  some  important  exceptions.  One  of  these  is, 
that  the  President  is  so  far  made  a  part  of  the  legislative  power, 
that  his  assent  is  required  to  the  enactment  of  all  statutes  and 
s  resolutions  of  Congress.  This,  however,  is  so  only  to  a  limited 
extent,  for  a  bill  may  become  a  law  notwithstanding  the  refusal 


The   Federal   System  of  Government  139 

of  the  President  to  approve  it,  by  a  vote  of  tvi^o-thirds  of  each 
House  of  Congress.  So,  also,  the  Senate  is  made  a  partaker  in 
the  functions  of  appointing  officers  and  making  treaties,  v^^hich 
are  supposed  to  be  properly  executive,  by  requiring  its  consent 
to  the  appointment  of  such  officers  and  the  ratification  of  treaties. 
The  Senate  also  exercises  the  judicial  povi^er  of  trying  impeach- 
ments, and  the  House  of  preferring  articles  of  impeachment. 

In  the  main,  however,  that  instrument,  the  model  on  which  are 
constructed  the  fundamental  laws  of  the  States,  has  blocked  out 
with  singular  precision,  and  in  bold  lines,  in  its  three  primary 
articles,  the  allotment  of  power  to  the  executive,  the  legislative 
and  the  judicial  departments  of  the  government.  It  also  re- 
mains true,  as  a  general  rule,  that  the  powers  confided  by  the 
Constitution  to  one  of  these  departments  cannot  be  exercised  by 
another. 

In  looking  to  the  preamble  and  resolution  under  which  the   The  House 
committee  acted,   before  which   Kilbourn  refused  to  testify,  we  sentatives 
are  of  opinion  that  the  House  of  Representatives  not  only  ex-   exceeded  its 
cecded  the  limit  of  its  own  auth(jrity,  but  assumed  a  power  which   ^"^^°"'y- 
could  only  properly  be  exercised  by  another  branch  of  the  govern- 
ment, because  it  was  in  its  nature  clearly  judicial. 

The  Constitution  declares  that  the  judicial  power  of  the  United   The  action 
States  shall  be  vested  in  one  Suijreme  Court,  and  such  inferior  "^  ^"•'.wi';?.;.,! 

•■  '  WilS    J  UUlLlcll. 

courts  as  the  Congress  shall  from  time  to  time  ordain  and  estab- 
lish. If  what  we  have  said  of  the  division  of  the  powers  of  the 
government  among  the  three  departments  be  sound,,  this  is  equiva- 
lent to  a  declaration  that  no  judicial  power  is  vested  in  the  Con- 
gress or  either  branch  of  it,  save  in  the  cases  specifically  enumer- 
ated to  which  we  have  referred.  If  the  investigation  which  the 
committee  was  directed  to  make  was  judicial  in  its  character, 
and  could  only  be  proi)erly  and  successfully  made  by  a  court  of 
justice,  and  if  it  related  to  a  matter  wherein  relief  ,or  redress 
could  be  had  only  by  a  judicial  proceeding,  we  do  not,  after 
what  has  been  said,  deem  it  necessary  to  discuss  the  proposition 
that  the  power  attempted  to  be  exercised  was  one  confided  by 


140 


American   Government  and   Politics 


the  Constitution  to  the  judicial  and  not  to  the  legislative  depart- 
ment of  the  government.  We  think  it  equally  clear  that  the 
power  asserted  is  judicial  and  not  legislative. 

We  are  of  the  opinion,  for  these  reasons,  that  the  resolution 
of  the  House  of  Representatives  authorizing  the  investigation 
v^^as  in  excess  of  the  power  conferred  on  that  body  by  the  Con- 
stitution; that  the  committee,  therefore,  had  no  lawful  authority 
to  require  Kilbourn  to  testify  as  a  witness  beyond  what  he  volun- 
tarily chose  to  tell;  that  the  orders  and  resolutions  of  the  House, 
and  the  warrant  of  the  speaker,  under  which  Kilbourn  was  im- 
prisoned, are,  in  Uke  manner,  void  for  want  of  jurisdiction  in 
that  body,  and  that  his  imprisonment  was  without  any  lawful 
authority, 

58.    The  Supremacy  of  Federal  Law  * 

The  federal  Constitution  expressly  declares  in  the  following 
clauses  the  supremacy  of  federal  law  :  — 

This  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or 
which  shall  be  made  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land;  and  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  Constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding.   ' 

The  senators  and  representatives  before  mentioned,  and  the 
members  of  the  several  State  Legislatures,  and  all  executive  and 
judicial  officers,  both  of  the  United  States  and  of  the  several 
States,  shall  be  bound  by  oath  or  affirmation  to  support  this 
Constitution;  but  no  religious  test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust  under  the  United  States. 

It  was  thus  clearly  established  that  within  its  sphere,  the  federal 
government  was  suj^rcmc,  but  it  was  not  expressly  stated  what 
authority  should  have  the  power  to  decide  when  any  particular 
act  of  the  government  was  within  its  prescribed  limits  of  power. 
The  supremacy  of  the  federal  law  as  interpreted  by  the  Supreme 
Court  in  the  last  instance  was  forcibly  asserted  by  Chief  Justice 


The  Federal  System  of  Government         141 

Taney  in  a  long  opinion  delivered  in  connection  with  a  fugitive 
slave  case,  from  v^hich  only  a  iew  passages  can  be  given  here. 

The  Constitution  was  not  formed  merely  to  guard  the  States  The  neces- 
against  danger  from  foreign  nations,  but  mainly  to  secure  union  common^ 
and  harmony  at  home;  for  if  this  object  could  be  obtained,  arbiter. 
there  would  be  but  little  danger  from  abroad;  and  to  accom- 
plish this  purpose,  it  was  felt  by  the  statesmen  who  framed  the 
Constitution,  and  by  the  people  who  adopted  it,  that  it  was  neces- 
sary that  many  of  the  rights  of  sovereignty  which  the  States  then 
possessed  should  be  ceded  to  the  General  Government;  and 
that,  in  the  sphere  of  action  assigned  to  it,  it  should  be  supreme 
and  strong  enough  to  execute  its  own  laws  by  its  own  tribunals, 
without  interruption  from  a  State  or  from  State  authorities. 
And  it  was  evident  that  anything  short  of  this  would  be  inade- 
quate to  the  main  objects  for  which  the  Government  was  estab- 
lished; and  that  local  interests,  local  passions  or  prejudices,  in- 
cited and  fostered  by  individuals  for  sinister  purposes,  would 
lead  to  acts  of  aggression  and  injustice  by  one  State  upon  the 
rights  of  another,  which  would  ultimately  terminate  in  violence 
and  force,  unless  there  was  a  common  arbiter  between  them, 
armed  with  power  enough  to  protect  and  guard  the  rights  of  all, 
by  appropriate  laws,  to  be  carried  into  execution  peacefully  by 
its  judicial  tribunals. 

The  supremacy  conferred  on  this  Government  could  not 
peacefully  be  maintained,  unless  it  was  clothed  with  judicial 
power,  equally  paramount  in  authority  to  carry  it  into  execu- 
tion, for  if  left  to  the  courts  of  justice  in  the  several  States,  con- 
flicting decisions  would  unavoidably  take  place,  and  the  local 
tribunals  could  hardly  be  expected  to  be  always  free  from  the 
local  influences  of  which  we  have  spoken.  And  the  Constitu- 
tion and  laws  and  treaties  of  the  United  States,  and  the  powers 
granted  to  the  Federal  Government,  would  soon  receive  different 
interpretations  in  different  States,  and  the  Government  of  the 
United  States  would  soon  become  one  thing  in  one  State  and 


142  American  Government  and  Politics 


another  thing  in  another.  It-^s  essential,  therefore,  to  its  very 
existence  as  a  Government,  that  it  should  have  the  power  of 
establishing  courts  of  justice,  altogether  independent  of  State 
power,  to  carry  into  effect  its  own  laws;  and  that  a  tribunal 
should  be  estabhshed  in  which  all  cases  which  might  arise  under 
the  Constitution  and  laws  and  treaties  of  the  United  States  should 
be  finally  and  conclusively  decided.  Without  such  a  tribunal,  it 
is  obvious  that  there  would  be  no  uniformity  of  judicial  decision; 
and  that  the  supremacy  (which  is  but  another  name  for  inde- 
pendence), so  carefully  provided  in  the  clause  of  the  Constitution 
above  referred  to,^  could  not  possibly  be  maintained  peacefully, 
unless  it  was  associated  with  this  paramount  judicial  authority. 
Supreme  Accordingly,  it  was  conferred  on  the  General  Government,  in 

have  appel-  clear,  precise,  and  comprehensive  terms.  It  is  declared  that  its 
late  jurisdic-  judicial  power  shall  (among  other  subjects  enumerated)  extend 
state^courts  ^'^  ^^^  cases  in  law  and  equity  arising  under  the  Constitution  and 
laws  of  the  United  States,  and  that  in  such  cases,  as  well  as  the 
others  there  enumerated,  this  court  shall  have  appellate  jurisdic- 
tion both  as  to  law  and  fact,  vdth  such  exceptions  and  under  such 
regulations  as  Congress  shall  make.  The  appellate  power,  it 
will  be  observed,  is  conferred  on  this  court  in  all  cases  or  suits 
in  which  such  a  question  shall  arise.  It  is  not  confined  to  suits 
in  the  inferior  courts  of  the  United  States,  but  extends  to  all 
cases  where  such  a  question  arises,  whether  it  be  in  a  judicial 
tribunal  of  a  State  or  of  the  United  Stated  And  it  is  manifest 
that  this  ultimate  appellate  power  in  a  tribunal  created  by  the 
Constitution  itself  was  deemed  essential  to  secure  the  independ- 
ence and  supremacy  of  the  General  Government  in  the  sphere 
of  action  assigned  to  it;  to  make  the  Constitution  and  laws  of 
the  United  States  uniform,  and  the  same  in  every  State;  and  to 
guard  against  evils  which  would  inevitably  arise  from  conflicting 
opinions  between  the  courts  of  a  State  and  of  the  United  States, 
if  there  was  no  common  arbiter  authorized  to  decide  between 
them. 

»  P.  140. 


The  Federal  System  of  Government         143 


The  importance  which  the  framers  of  the  Constitution  attached 
to  such  a  tribunal,  for  the  purpose  of  preserving  internal  tran- 
quillity, is  strikingly  manifested  by  the  clause  which  gives  this 
court  jurisdiction  over  the  sovereign  States  which  compose  this 
Union,  when  a  controversy  arises  between  them.  Instead  of  re- 
serving the  right  to  seek  redress  for  injustice  from  another  State 
by  their  sovereign  powers,  they  have  bound  themselves  to  sub- 
mit to  the  decision  of  this  court,  and  to  abide  by  its  judgment. 
And  it  is  not  out  of  place  to  say,  here,  that  experience  has  demon- 
strated that  this  power  was  not  unwisely  surrendered  by  the 
States;  for  in  the  time  that  has  already  elapsed  since  this  Gov- 
ernment came  into  existence,  several  irritating  and  angry  con- 
troversies have  taken  place  between  adjoining  States,  in  relation 
to  their  respective  boundaries,  and  which  have  sometimes  threatened 
to  end  in  force  and  violence,  but  for  the  power  vested  in  this  court 
to  hear  them  and  decide  between  them. 

As  the  final  appellate  power  in  all  such  questions  is  given  to 
this  court,  controversies  as  to  the  respective  powers  of  the  United 
States  and  the  States,  instead  of  being  determined  by  military 
and  physical  force,  are  heard,  investigated,  and  finally  settled, 
with  the  calmness  and  deliberation  of  judicial  inquiry.  And  no 
one  can  fail  to  see,  that  if  such  an  arbiter  had  not  been  provided, 
in  our  complicated  system  of  government,  internal  tranquillity 
could  not  have  been  preserved;  and  if  such  controversies  were 
left  to  the  arbitrament  of  physical  force,  our  Governments,  State 
and  National,  would  soon  cease  to  be  Governments  of  laws,  and 
revolutions  by  force  of  arms  would  take  the  place  of  courts  of 
justice  and  judicial  decisions. 


States  are 
bound  to 
submit  to 
the  decisions 
of  the  Su- 
preme Court. 


Judicial 
decisions 
take  the 
place  of  war. 


59.    The  Suffrage  under  the  Federal  Constitution 

The  federal  Constitution  does  not  state  who  shall  have  the  right  The  negative 

to  vote  in  the  United  States.     The  problem  was  discussed  in  the  '^l^'Y'l'^'*;', 

convention,  but  the  original  instrument  left  the  matter  to  the  states,  suffrage 

Representatives  in  Congress  were  to  be  chosen  by  the  persons  provisions, 
entitled  under  state  law  to  vote  for  members  of  the  most  numcr- 


144 


American   Government  and  Politics 


ous  branch  of  the  state  legislature;  senators  were  to  be  elected 
by  the  legislatures ;  and  presidential  electors  were  to  be  chosen  as 
the  legislatures  of  the  state  should  determine.  The  later  amend- 
ments designed  to  secure  the  vote  for  negroes  were  merely  negative 
statements  restricting  the  right  of  the  state  to  regulate  the  suffrage. 
Subject  to  the  limits  of  the  Fourteenth  and  Fifteenth  Amendments/ 
the  states  may  fix  their  own  suffrage  qualifications  and,  as  a 
result,  there  is  a  great  variety  of  practices,  some  of  the  states  going 
so  far  as  to  enfranchise  persons  not  yet  full  citizens  of  the  United 
States.  This  anomalous  situation  was  discussed  by  Mr.  Lincoln 
in  the  New  York  state  convention  of  1894. 

We  have  had  placed  in  our  hands,  at  the  expense  of  the  State, 
the  Constitutions  of  all  the  States  in  the  Union.  In  examining 
these  Constitutions,  with  a  view,  possibly,  of  borrowing  some 
ideas  therefrom,  which  we  might  find  useful,  I  find  that  in  six- 
teen of  these  States  [1894],  named  in  the  resolutions,  persons  are 
permitted  to  vote  before  they  become  citizens  of  the  United 
States. 

Now,  the  State  of  New  York  has  steadily  adhered  to  the  prin- 
ciple of  citizen  suffrage.  We  do  not  believe  in  permitting  people 
to  become  voters  and  to  participate  in  the  affairs  of  government 
until  they  are  at  least  citizens.  In  getting  at  the  matter,  to  see 
what  could  be  done,  so  far  as  this  Convention  is  concerned,  it 
seemed  to  me  that  we  might  very  properly  call  the  attention  of 
Congress  to  this  matter  by  resolution  of  this  Convention;  not  in 
the  sense  of  discourteous  criticism  of  the  Constitutions  of  other 
States,  as  is  suggested  in  the  report  of  the  Suft'rage  Committee; 
that  was  not  intended  by  these  resolutions  at  all;  but  that  we 
might  ask  Congress  to  take  some  action,  with  a  view  to  implant- 
ing the  principle  of  citizen  suffrage  in  the  Constitution  of  the 
United  States.  That  instrument  does  not  now  regulate  this 
question.  It  is  left  to  the  States  themselves,  and,  I  believe,  the 
time  has  come  in  our  history  when  the  Constitution  of  the  United 
States  ought  to  define  the  rules  of  suffrage,  or  at  least  that  it 
should  go  to  the  extent  of  limiting  the  right  of  suffrage  to  people 

'  See  below,  p.  393. 


The  Federal  System   of  Government  145 

who  are  citizens.  It  seems  to  me  that  we  ought  not  to  have  one 
standard  for  citizenship  and  another  standard  for  suffrage;  but 
that  in  all  the  States,  and  especially  in  the  event  of  a  national 
election,  there  should  be  one  standard  for  all  voters  throughout 
the  entire  Union.  These  voters  in  these  States  vote  for  repre- 
sentatives in  Congress,  for  presidential  electors,  and  they,  also, 
vote  for  members  of  the  Legislature  who  elect  Senators  of  the 
United  States,  thereby  making  the  qualifications  of  voters  un- 
equal in  the  different  States;  and,  therefore,  it  may  work  to  the 
disadvantage  of  States  holding  to  citizen  suffrage. 

To  illustrate :    Four  of  these  States  permit  voting  after  a  resi-   How  the 
dence  of  only  six  months;    so  that  if  a  foreigner  goes  to  one  of   ^^^^^ 
those  States  the  first  of  May,  and  declares  his  intention  of  be-   works, 
coming  a  citizen,  he  may  at  the  follovdng  November  election  vote 
for  any  officer,   State  or  national.      Thus,   after  a  residence  of 
only  six  months  in  this  country,   he  becomes  entitled  to  vote, 
with  the  same  force  and  effect,  and  his  vote  counts  for  just  as 
much  as  the  vote  of  a  citizen  who  has  resided  here  five  years,  or 
who  has  been  raised  in  this  country  and  has  been  compelled  to 
live  here  twenty-one  years.     Again,   suppose  that  two   brothers 
come  here  by  the  same  steamer;    one  of  them  goes  to  one  of 
these  States,  and  the  other  remains  in  this  State.     The  one  who 
goes  to  these  .States  may  vote  after  living  there  six  months,  but 
the  one  who  remains  in  New  York  State  must  live  here  five  years 
before  he  is  entitled  to  vote. 

It  is  this  inequality  that  is  aimed  at  by  these  resolutions,  and   A  constitu- 
there  seems  to  be  no  way  of  remedying  this  state  of  affairs  except   amendment 
by  amending  the  Constitution  of  the  United  States.     The  Con-   the  remedy, 
stitution  itself,  at  the  time  it  was  framed,  was  the  creature  of 
compromises.     The  question  of  sufTrage  was  left  largely  to  the 
States  themselves.     The  electors  who  are  entitled  to  vote  for  the 
most    numerous    branch   of    the   State   legislature   may  vote  for 
representatives  in   Congress.     That,   I  think,  is  the  only  provi- 
sion in  the  Constitution  on  the  subject.     It  seems  to  me  that  it  is 
peculiarly  proper  to  take  some  action  upon  this  matter  not  in 

L 


146  American   Government  and   Politics 

the  spirit  of  criticism,  but  by  way  of  courteous  depreciation  or 
protest.  We  are  here  representing  ten  per  cent  of  the  popula- 
tion of  the  entire  Union.  We  are  here  representing  fifteen  per 
cent  of  the  wealth  of  the  entire  Union;  and  when  we  find  that 
our  sister  States  have  placed  in  their  Constitutions  provisions 
which  we  believe  to  be  inimical  to  our  interests  and  the  interests 
of  the  entire  country  at  large,  I  think  it  is  proper  for  us  to,  at 
least,  call  their  attention  to  it,  and  by  going  to  the  source  of  amend- 
ments to  the  Constitution  of  the  United  States,  ask  that  the  Con- 
stitution itself  be  so  amended  as  to  correct  this  inequality  in  the 
right  of  suffrage.  We  have  a  right  to  be  heard.  It  is  our  duty 
to  speak,  and  we  would  be  remiss  if  we  failed  to  do  so. 

60.    Reciprocal  Guarantee  of  Privileges  and  Immunities  among 
the  Several  States 

One  of  the  fundamental  purposes  of  the  federal  Constitution 
was  to  make  a  nation  in  which  citizens  might  move  freely  about 
without  hindrances  from  the  respective  states.  To  secure  this 
end,  its  framers  embodied  in  it  a  clause  to  the  effect  that  "The 
citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immu- 
nities of  citizens  of  the  several  States."  This  clause  has  been 
interpreted  by  the  courts  in  this  fashion :  — 

What  are  the  privileges  and  immunities  of  citizens  of  the 
several  States?  We  feel  no  hesitation  in  confining  these  expres- 
sions to  those  privileges  and  immunities  which  are  in  their  nature 
fundamental;  which  belong  to  the  citizens  of  all  free  govern- 
ments ;  and  which  have,  at  all  times,  been  enjoyed  by  the  citizens 
of  the  several  States  which  compose  this  Union,  from  the  time  of 
their  becoming  free,  independent,  and  sovereign.  What  those 
fundamental  principles  are,  it  would  perhaps  be  more  tedious 
than  difficult  to  enumerate.  They  may,  however,  be  all  com- 
prehended under  the  following  general  heads:  phjtection  by  the 
government,  the  enjoyment  of  life  and  liberty,  with  the  right  to 
acquire  and  possess  property  of  every  kind,  and  to  pursue  and 
obtain  happiness   and  safety,   subject   nevertheless   to   such   re- 


The   Federal  System   of  Government  147 

straints  as  the  government  may  justly  prescribe  for  the  general 
good  of  the  whole.  The  right  of  a  citizen  of  one  State  to  pass 
through  or  reside  in  any  other  State,  for  the  purposes  of  trade, 
agriculture,  professional  pursuits,  or  otherwise;  to  claim  the 
benefit  of  the  writ  of  habeas  corpus;  to  institute  and  maintain 
actions  of  every  kind  in  the  courts  of  the  State;  to  take,  hold 
and  dispose  of  property,  either  real  or  personal;  and  an  exemp- 
tion from  higher  taxes  or  impositions  than  are  paid  by  citizens 
of  the  other  State,  —  may  be  mentioned  as  some  of  the  particu- 
lar privileges  and  immunities  of  citizens  which  are  clearly  em- 
braced by  the  general  description  of  privileges  deemed  to  be 
fundamental;  to  which  may  be  added  the  elective  franchise  as 
regulated  and  established  by  the  laws  or  constitution  of  the 
State  in  which  it  is  to  be  exercised.  These,  and  many  others 
which  might  be  mentioned  are,  strictly  speaking,  privileges  and 
immunities,  and  the  enjoyment  of  them  by  the  citizens  of  each 
State  in  every  other  State  was  manifestly  calculated  (to  use  the 
expressions  of  the  preamble  of  the  corresponding  provision  in 
the  old  Articles  of  Confederation)  "the  better  to  secure  and  per- 
petuate mutual  friendship  and  intercourse  among  the  people  of 
the  dififerent  States  of  the  Union." 

It  was  undoubtedly  the  object  of  the  clause  in  question  to   A  state 
place  the  citizens  of  each  State  upon  the  same  footing  with  citi-   j-rim;"  ^^^  ' 
zens  of  other  States,   so  far  as  the  advantages  resulting  from   against 
citizenship  in  those  States  are  concerned.     It  reheves  them  from   '^'V'^'^"^°. 

^     _  _  other  states. 

the  disabilities  of  alienage  in  other  States;  it  inhibits  discrimi- 
nating legislation  against  them  by  other  States;  it  gives  them 
the  right  of  free  ingress  into  other  States  and  egress  from  them; 
it  insures  to  them  in  other  States  the  same  freedom  possessed  by 
the  citizens  of  those  States  in  the  acquisition  and  enjoyment  of 
property,  and  in  the  pursuit  of  happiness;  and  it  secures  to  them 
in  other  States  the  equal  protection  of  their  laws.  It  has  been 
justly  said  that  no  provision  in  the  Constitution  has  tended  so 
strongly  to  constitute  the  citizens  of  the  United  States  one  people 
as  this.     (Lemmon  v.  People,  20  N.  Y.  607.)     Indeed,  without 


148 


American  Government  and   Politics 


A  citizen 
cannot  carry 
special  privi- 
leges into 
another 
state. 


some  provision  of  the  kind,  removing  from  the  citizens  of  each 
State  the  disabilities  of  alienage  in  other  States,  and  giving  them 
equality  of  privilege  with  the  citizens  of  those  States,  the  republic 
would  have  constituted  little  more  than  a  league  of  States;  it 
would  not  have  constituted  the  Union  which  now  exists. 

But  the  privileges  and  immunities  secured  to  citizens  of  each 
State  in  the  several  States  by  the  provision  in  question,  are  those 
privileges  and  immunities  which  are  common  to  the  citizens  in 
the  latter  States,  under  their  constitution*  and  laws,  by  virtue  of 
their  being  citizens.  Special  privileges  enjoyed  by  citizens  in 
their  own  States  are  not  secured  in  other  States  by  this  provision. 
It  was  not  intended  by  the  provision  to  give  to  the  laws  of  one 
State  any  operation  in  other  States.  They  can  have  no  such 
operation,  except  by  the  permission,  express  or  implied,  of  those 
States.  The  special  privileges  which  they  confer  must,  therefore, 
be  enjoyed  at  home  unless  the  assent  of  other  States  to  their 
enjoyment  therein  be  given. 


The  con- 
stitutional 
provision. 


The  gov- 
ernor of 
Iowa  asks 
for  advice 
on  a  requisi- 
tion from 
Kentucky. 


61.    Interstate  Rendition 

In  order  that  criminals  from  one  state  may  not  be  harbored 
in  another  state,  the  Constitution  provides  that  "A  person  charged 
in  any  state  with  treason,  felony,  or  other  crime,  who  shall  flee  from 
justice  and  be  found  in  another  state,  shall  on  demand  of  the  ex- 
ecutive authority  of  the  state  from  which  he  fled  be  delivered  up 
to  be  removed  to  the  state  having  jurisdiction  of  the  crime."  The 
Supreme  Court,  however,  has  decided  that  there  is  no  way  of  com- 
pelling a  state  governor  to  surrender  a  criminal,  should  he  refuse 
to  do  so  on  demand,  and,  in  actual  practice,  governors  have  a  wide 
discretion  in  the  matter.  The  following  report  from  an  attorney- 
general  of  Iowa  illustrates  how  the  requisitions  of  other  states 
are  looked  into  and  on  sufficient  grounds  may  be  disallowed :  — 

Sir  —  I  beg  to  acknowledge  the  receipt  of  your  communication 
of  the  12th  inst.,  containing  a  request  that  I  examine  the  requi- 
sition made  by  the  governor  of  Kentucky  for  the  extradition  of 
J.  D.  Wurtsbaugh,  together  with  the  evidence  attached  to  the 
requisition,  and  advise  you  as  governor  of  the  state  whether  in 


The  Federal   System  of  Government         149 

my  opinion  such  requisition  should  be  honored  and  Wurtsbaugh 
returned  to  the  state  of  Kentucky  for  trial  for  the  offense  claimed 
to  have  been  committed  in  that  state.  In  response  to  such  re- 
quest I  beg  to  submit  the  following  opinion: 

The  facts  in  the  case,  as  disclosed  by  the  undisputed  evidence,   ^^^  ^'■'™^ 

1  rxT  r   11  e   I-         ^  t     •  Committed 

are  these:  [Here  follows  statement  01  lactsj.  ...  It  is  repug-  eighteen 
nant  to  every  sense  of  justice  to  say  that  where  a  person  leaves  a  years  ago. 
state  in  the  ordinary  course  of  his  affairs  without  any  attempt 
of  concealment,  and  for  eighteen  years  lives  an  upright  life,  he 
may  then  be  arrested  and  returned  to  the  state  where  the  crime  is 
claimed  to  have  been  committed  eighteen  years  before,  to  be  put  on 
trial  for  that  offense,  unless  he  is  charged  with  murder  or  treason. 

This  view,  as  it  appears  to  me,  is  based  upon  the  soundest  Why  the 
principles  of  public  policy;    that  is,  if  the  authorities  of  a  sister  from^^Ken- 
state  desire  the  arrest  and  return  of  a  fugitive  from  justice,  the   tucky  should 
application   therefore   must   be   made   within   a  reasonable   time 
under  all  the  circumstances  of  the  case  after  the  commission  of 
the  offense.     The  request  now  made  by  the  governor  of  Ken- 
tucky for  the  arrest  and  return  of  J.  D.  Wurtsbaugh  for  an  offense 
committed  more  than  eighteen  years  ago  in  that  state  does  not 
fall  within  this  rule.     If  the  authorities  of  Kentucky  desired  to 
try  Mr.  Wurtsbaugh  for  the  offense  of  bigamy,  an  application 
for  his  return  to  that  state  should  have  been  made  with  reason- 
able promptness  after  the  offense  was  committed.     Under  all  the 
circumstances  of  this  case,  I  am  of  the  opinion  that  Wurtsbaugh 
can  not  now  be  held  to  be  a  fugitive  from  justice  under  the  pro- 
visions of  the  federal  constitution.  .  .  . 

The  request  of  the  governor  of  Kentucky  should  not,  therefore 
in  my  opinion,  be  complied  with,  and  Wurtsbaugh  should  not 
be  arrested  and  returned  to  that  state  to  answer  the  charge  pre- 
ferred against  him.     Respectfully  submitted, 

Cel\s.  W.  Mullan, 
A  Uorncy-Gencral. 
October  26,  1903. 
To  the  Honorable  A.  B.  Cummins, 
Governor  of  Iowa, 


I50 


American  Government  and  Politics 


62.    The  National  Character  of  Citizenship* 

Although  in  common  usage  we  speak  of  a  person's  being  a  citizen 
of  a  particular  state,  there  is  in  actual  fact  no  such  thing  as  state 
citizenship  in  the  strict  sense  in  which  the  term  is  used  in  inter- 
national law.  ^Citizenship  is  national  in  character,  and  states 
cannot  interfefe  with  the~lnethods  by  which  it  is  acquired  or  lost. 
The  original  Constitution,  however,  was  not  explicit  in  its  terms 
as  to  citizenship,  nor  is  the  Fourteenth  Amendment  referring  to  it 
exhaustive  in  its  provisions.  The  subject,  confused  as  it  is,  has 
received  the  following  general  treatment  by  the  Supreme  Court :  — 

The  Constitution  of  the  United  States,  as  originally  adopted, 
uses  the  words  "citizen  of  the  United  States,"  and  "natural- 
born  citizen  of  the  United  States."  By  the  original  Constitution, 
every  representative  in  Congress  is  required  to  have  been  "seven 
years  a  citizen  of  the  United  States,"  and  every  Senator  to  have 
been  "nine  years  a  citizen  of  the  United  States";  and  "no  per- 
son except  a  natural-born  citizen,  or  a  citizen  of  the  United 
States  at  the  time  of  the  adoption  of  this  Constitution,  shall  be 
eligible  to  the  office  oi  President."  The  Fcjurteenth  Article  of 
Amendment,  besides  declaring  that  "all  persons  born  or  natu- 
ralized in  the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  -^ate  wherein  they 
reside,"  also  declares  that  "no  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the-Umted  States;  nor  shall  any  State  deprive  any  person  of 
life,  liberty,  or  pro})erty,  without  due  process  of  law;  nor  deny 
to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws."  And  the  Fifteenth  Article  of  Amendment  declares  that 
"the  right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States,  or  by  any  State,  on 
account  of  race,  color,  or  previous  condition  of  ser\dtude."  The 
Constitution  nowhere  defines  the  meaning  of  these  words,  either 
by  way  of  inclusion  or  exclusion,  except  in  so  far  as  this  is  done 
by  the  affirmative  declaration  that  "all  persons  born  or  natu- 
ralized in  the  United  States,  and  subject  to  the  jurisdiction  thereof, 


The   Federal  System  of  Government  151 

are  citizens  of  the  United  States."  In  this,  as  in  other  respects, 
it  must  be  interpreted  in  the  light  of  the  common  law,  the  princi- 
ples and  history  of  which  were  famiharly  known  to  the  framers 
of  the  Constitution. 

By  the  Constitution  of  the  United  States,  Congress  was  em-   Three 
powered   "to   establish   an  uniform  rule  of  naturalization."     In   persons 
the  exercise  of  this  power,  Congress,  by  successive  acts,  has  made   admitted  to 
provision   for   the    admission    to    citizenship    of    three    principal 
classes  of  persons:    First.     Aliens,  having  resided  for  a  certain 
time  "within  the  limits  and  under  the  jurisdiction  of  the  United 
States,"  and  naturalized  individually  by  proceedings  in  a  court 
of  record.     Second.     Children  of  persons  so  naturalized,  "dwell- 
ing within  the  United  States,  and  being  under  the  age  of  twenty- 
one  years  at  the  time  of  such  naturalization."     Third.     Foreign- 
born  children  of  American  citizens,  coming  within  the  definitions 
prescribed  by  Congress. 

The  real  object  of  the  Fourteenth  Amendment  of  the  Consti-   Persons  not 
tution,  in  qualifying  the  words,  "All  persons  born  in  the  United   jj^^  jurisdic- 
States,"  by  the  addition,  "and  subject  to  the  jurisdiction  thereof,"   tion  of  the 
would  appear  to  have  been  to  exclude,  by  the  fewest  and  fittest   states, 
words,  (besides  children  of   the   members  of   the   Indian   tribes, 
standing  in  a  peculiar  relation  to  the  National  Government,  un- 
known to  the  common  law,)  two  classes  of  cases  —  children  born 
of  alien  enemies  in  hostile  occupation,   and  children  of  diplo- 
matic representatives  of  a  foreign  State  —  both  of  which,  as  has 
already  been  shown,  by  the  law  of  England  and  by  our  own  law, 
from  the  time  of  the  first  settlement  of  the  EngHsh  colonies  in 
America,  had  been  recognized  exceptions  to  the  fundamental  rule 
of  citizenship  by  birth  within  the  country. 

The  Fourteenth  Amendment  affirms  the  ancient  and  funda-   W^^  ^'"'^ 

1         ,         r      •  •  I  •       1        1  •     1         •  1  •        1  •  •        1        natural-born 

mental  rule  of  citizenship  by  birth  within  the  territory,  in  the   citizens, 
allegiance  and  under  the  protection  of  the  country;    including 
all  children  here  born  of  resident  aliens,  with  the  exceptions  or 
qualifications   (as  old  as  the  rule  itself)   of  children  of  foreign 
sovereigns  or  their  ministers,  or  born  on  foreign  public  shiy)S,  or 


152  American   Government  and   Politics 

of  enemies  within  and  during  a  hostile  occupation  of  part  of  our 
territory,  and  with  the  single  additional  exception  of  children  of 
members  of  the  Indian  tribes  owing  direct  allegiance  to  their 
several  tribes.  The  Amendment,  in  clear  words  and  in  manifest 
intent,  includes  the  children  born,  within  the  territory  of  the 
United  States,  of  all  other  persons,  of  whatever  race  or  color, 
domiciled  within  the  United  States.  Every  citizen  or  subject  of 
another  country,  while  domiciled  here,  is  within  the  allegiance 
and  the  protection,  and  consequently  subject  to  the  jurisdiction, 
of  the  United  States.  To  hold  that  the  Fourteenth  Amendment 
of  the  Constitution  excludes  from  citizenship  the  children,  born 
in  the  United  States,  of  citizens  or  subjects  of  other  countries, 
would  be  to  deny  citizenship  to  thousands  of  persons  of  English, 
Scotch,  Irish,  German  or  other  European  parentage,  who  have 
always  been  considered  and  treated  as  citizens  of  the  United  States. 
The  Fourteenth  Amendment  of  the  Constitution,  in  the  decla- 
ration that  "all  persons  born  or  naturalized  in  the  United  States 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside,"  contemplates  two 
sources  of  citizenship  and  two  only:  birth  and  naturalization. 
Citizenship  by  naturaHzation  can  only  be  acquired  by  naturali- 
zation under  the  authority  and  in  the  forms  of  law.  But  citizen- 
ship by  birth  is  established  by  the  mere  fact  of  birth  under  the 
circumstances  defined  in  the  Constitution.  Every  person  born 
within  the  United  States  and  subject  to  the  jurisdiction  thereof 
becomes  at  once  a  citizen  of  the  United  States  and  needs  no 
naturalization.  A  person  born  out  of  the  jurisdiction  of  the 
United  States  can  only  become  a  citizen  by  being  naturalized, 
either  by  treaty,  as  in  the  case  of  the  annexation  of  foreign  terri- 
tory; or  by  authority  of  congress,  exercised  either  by  declaring 
certain  classes  of  persons  to  be  citizens,  as  in  the  enactments 
conferring  citizenship  upon  foreign-born  children  of  citizens,  or 
by  enabling  foreigners  individually  to  become  citizens  by  pro- 
ceedings in  the  judicial  tribunals  as  in  the  ordinary  provisions  of 
the  naturalization  acts. 


The   Federal  System  of  Government         153 

The  power  of  naturalization,  vested  in  Congress  by  the  con-   Naturalized 
stitution,  is  a  power  to  confer  citizenship,  not  a  power  to  take  it     -^^  ^^^ 
away.     "A    naturahzed   citizen,"    said    Chief    Justice    Marshall,    rights, 
"becomes  a  member  of  the  society  possessing  all  the  rights  of  a 
native  citizen,  and  standing,  in  the  view  of  the  constitution,  on 
the  footing  of  a  native.*     The  constitution  does  not  authorize 
congress  to  enlarge  or  abridge  those  rights.     The  simple  power 
of  the  national  legislature  is  to  prescribe  a  uniform  rule  of  natu- 
ralization, and  the  exercise  of  this  power  exhausts  it  so  far  as 
respects  the  individual." 

1  It  will  be  noted,  however,  that  a  naturalized  citizen  cannot  be  President  or 
Vice  President. 


CHAPTER    IX 


THE  NOMINATION  AND  ELECTION  OF  THE  PRESIDENT 


Article  II 
of  the 

federal  Con- 
stitution. 


The 

Twelfth 

Amendment. 


63.    Constitutional  Provisions  Relating  to  the  Election  of  the 
President 

The  mode  of  selecting  the  chief  magistrate  of  the  United  States, 
Hamilton  stated  in  The  Federalist,  was  almost  the  only  part  of  the 
new  scheme  of  government  which  escaped  without  severe  censure 
or  received  the  slightest  mark  of  approbation  from  its  opponents. 
Nevertheless,  it  has  been  the  only  part  of  the  national  machinery 
which  has  been  amended,  and,  in  it's  actual  operation,  it  has  de- 
parted completely  from  the  ideas  of  its  designers-.  The  following 
constitutional  provisions,  however,  form  the  starting  point  for  the 
study  of  the  subject :  — 

1.  The  executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall  hold  his  office  during  the  term 
of  four  years,  and,  together  with  the  Vice-President,  chosen  for 
the  same  term,  be  elected  as  follows : 

2.  Each  State  shall  appoint,  in  such  manner  as  the  Legislature 
thereof  may  direct,  a  number  of  electors,  equal  to  the  whole  num- 
ber of  senators  and  representatives  to  which  the  State  may  be  en- 
titled in  the  Congress ;  but  no  senator  or  representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United  States,  shall 
be  appointed  an  elector. 

[i.  The  electors  shall  meet  in  their  respective  States,  and  vote  by 
ballot  for  President  and  Vice-President,  one  of  whom,  at  least, 
shall  not  be  an  inhabitant  of  the  same  State  with  themselves ;  they 
shall  name  in  their  ballots  the  person  voted  for  as  President,  and  in 
distinct  ballots  the  person  voted  for  as  Vice-President,  and  they 
shall  make  distinct  lists  of  all  persons  voted  for  as  President,  and 

.154 


Nomination^  and   Election  of  the   President     155 

of  all  persons  voted  for  as  Vice-President,  and  of  the  number  of 
votes  for  each,  which  lists  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  seat  of  government  of  the  United  States,  directed 
to  the  President  of  the  Senate;  the  President  of  the  Senate  shall, 
in  the  presence  of  the  Senate  and  House  of  Representatives,  open 
all  the  certificates,  and  the  votes  shall  then  be  counted ;  the  person 
having  the  greatest  number  of  votes  for  President  shall  be  the  Presi- 
dent, if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed;  and  if  no  person  have  such  majority,  then  from  the 
persons  having  the  highest  numbers,  not  exceeding  three,  on  the 
list  of  'those  voted  for  as  President,  the  House  of  Representatives 
shall  choose  immediately  by  ballot  the  President.  But  in  choosing 
the  President  the  votes  shall  be  taken  by  States,  the  representation 
from  each  State  having  one  vote;  a  quorum  for  this  purpose  shall 
consist  of  a  member  cjr  members  from  two-thirds  of  the  States,  and 
a  majority  of  all  the  States  shall  be  necessary  to  a  choice.  And 
if  the  Hpuse  of  Representatives  shall  not  choose  a  President,  when- 
ever the  right  of  choice  shall  devolve  upon  them,  before  the  fourth 
day  of  March  next  following,  then  the  Vice-President  shall  act  as 
President,  as  in  the  case  of  death  or  other  constitutional  disability 
of  the  President. 

2.  The  person  having  the  greatest  number  of  votes  as  Vice- 
President  shall  be  the  Vice-President,  if  such  number  be  a  major- 
ity of  the  whole  number  of  electors  appointed,  and  if  no  person  have 

,  a  majority,  then  from  the  two  highest  numbers  on  the  list  the  Senate 
shall  choose  the  Vice-President;  a  quorum  for  the  purpose  shall 
consist  of  two-thirds  of  the  whole  number  of  senators,  and  a  ma- 
jority of  the  whole  number  shall  be  necessary  to  a  choice. 

3.  But  no  person  constitutionally  ineligil)le  to  the  office  of 
President  shall  be  eligible  to  that  of  Vice-President  of  the  United 
States.]^  .     ' 

•  These  three  paragraphs  constitute  the  Twelfth  Amendment,  which  supplanted 
the  following  clause  of  the  original  Constitution  in  t  804  ;  "3.  The  electors  shall  meet 
in  their  respective  States,  and  vote  by  ballot  for  two  persons,  of  whom_one  at  least 
shall  not  be  an  inhabitant  of  the  same  State  with  themselves.  And  they  shall 
make  a  list  of  all  the  persons  voted  for,  and  of  the  number  of  votes  for  each;  which 


156 


American   Government  and   Politics 


Qualifica- 
tions. 


Succession. 


Compensa- 
tion. 


4.  The  Congress  may  determine  the  time  of  choosing  the  elect- 
ors, and  the  day  on  which  they  shall  give  their  votes,  which  day 
shall  be  the  same  throughout  the  United  States. 

5.  No  person  except  a  natural-born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution,  shall 
be  eligible  to  the  office  of  President;  neither  shall  any  person  be 
eligible  to  that  office  who  shall  not  have  attained  to  the  age  of 
thirty-five  years  and  been  fourteen  years  a  resident  within  the 
United  States. 

6.  In  case  of  the  removal  of  the  President  from  office,  or  of  his 
death,  resignation,  or  inabihty  to  discharge  the  powers  and  duties 
of  the  said  ofiftce,  the  same  shall  devolve  on  the  Vice-President; 
and  the  Congress  may  by  law  provide  for  the  case  of  removal, 
death,  resignation,  or  inability,  both  of  the  President  and  Vice- 
President,  declaring  what  officer  shall  then  act  as  President;  and 
such  officer  shall  act  accordingly,  until  the  disability  be  removed 
or  a  President  shall  be  elected. 

7.  The  President  shall,  at  stated  times,  receive  for  his  services 
a  compensation,  which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected,  and  he 
shall  not  receive  within  that  period  any  other  emolument  from 
the  United  States,  or  any  of  them. 

list  they  shall  sign  and  certify,  and  transmit,  sealed,  to  the  seat  of  the  government 
of  the  United  States,  directed  to  the  President  of  the  Senate.  The  President  of 
the  Senate  shall,  in  the  presence  of  the  Seiiate  and  House  of  Representatives, 
open  all  the  certificates,  and  the  votes  shall  tlien  be  counted.  The  person  having 
the  greatest  number  of  votes  shall  be  the  President,  if  such  number  be  a  majority 
of  the  whole  number  of  electors  appointed;  and  Lf  there  be  more  than  one  who  have 
such  majority,  and  have  an  equal  number  of  votes,  then  the  House  of  Representa- 
tives shall  immediately  choose  by  ballot  one  of  them  for  President;  and  if  no  per- 
son have  a  majority,  then,  from  the  five  highest  on  the  list,  the  said  House  shall 
in  like  manner  choose  the  President.  But  in  choosing  the  President,  the  votes 
shall  be  taken  by  States,  the  representation  from  each  State  having  one  vote; 
a  quorum  for  this  purpose  shall  consist  of  a  member  or  members  from  two-thirds 
of  the  States,  and  a  majority  of  all  the  States  shall  be  necessaiy  to  a  choice.  In 
every  case,  after  the  choice  of  the  President,  the  person  having  the  greatest  num- 
ber of  votes. of  the  electors  shall  be  the  Vice-President.  But  if  there  should  remain 
two  or  more  who  have  equal  votes,  the  Senate  shall  choose  from  them  by  ballot 
the  Vice-President." 


ment. 


Nomination  and  Election  of  the   President     157 

8.    Before  he  enter  on  the  execution  of  his  office,  he  shall  take   Oath, 
the  following  oath  or  affirmation : 

"I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  office  of  President  of  the  United  States,  and  will,  to  the  best  of 
my  ability,  preserve,  protect,  and  defend  the  Constitution  of  the 
United  States." 

The  President,  Vice-President,  and  all  civil  officers  of  the  United   Impeach- 
States  shall  be  removed  from  office  on  impeachment  for  and  con- 
viction of  treason,  bribery,  or  other  high  crimes  and  misdemeanors. 


64.    The  Choice  of  the  Presidential  Electors 

Under  the  terms  of  the  Constitution,  the  electors  of  each  state 
are  to  be  chosen  as  the  legislature  thereof  may  determine.  There 
was,  however,  very  early  a  uniform  tendency  in  the  direction  of 
popular  choice  on  a  general  state  ticket,  and,  when  Michigan 
departed  temporarily  from  that  method  in  1892,  President  Harrison 
in  a  message  to  Congress  made  this  statement  of  the  case  against 
district  elections :  — 

The  method  of  appointment  by  the  States  of  electors  of  Presi-   The  history 
dent  and  Vice-President  has  recently  attracted  renewed  interest   electoral 
by  reason  of  a  departure  by  the  State  of  Michigan  from  the  method   system. 
which  had  become  uniform  in  all  the  States.     Prior  to  1832  va- 
rious methods  had  been  used  by  the  different  States,  and  even  by 
the  same  State.     In  some  the  choice  was  made  by  the  legislature; 
in  others  electors  were  chosen  by  districts,  but  more  generally 
by  the  voters  of  the  whole  State  upon  a  general   ticket.     The 
movement  toward  the  adoption  of  the  last-named  method  had  an 
early  beginning  and  went  steadily  forward  among  the  States  until 
in  1832  there  remained  but  a  single  State  (South  Carolina)  that 
had  not  adopted  it.'     That  State  until  the  Civil  War  continued 
to  choose  its  electors  by  a  vote  of  the  legislature,  but  after  the  war 
changed  its  method  and  conformed  to  the  practice  of  "other  States. 

1  Election  by  general  ticket  went  into  cfifect  in  Maryland  in  1836. 


158 


American   Government  and   Politics 


For  nearly  sixty  years  all  the  States  save  one  have  appointed  their 
electors  by  a  popular  vote  upon  a  general  ticket,  and  for  nearly 
thirty  years  this  method  was  universal. 

After  a  full  test  of  other  methods,  without  important  division 
or  dissent  in  any  State  and  without  any  purpose  (jf  party  advan- 
tage, as  we  must  beheve,  but  solely  upon  the  consideration  that  uni- 
formity was  desirable  and  that  a  general  election  in  territorial 
divisions  not  subject  to  change  was  most  consistent  with  the  popular 
character  of  our  institutions,  best  preserved  the  equality  of  the 
voters,  and  perfectly  removed  the  choice  of  President  from  the 
baneful  influence  of  the  "gerrymander,"  the  practice  of  all  the 
States  was  brought  into  harmony.  That  this  concurrence  should 
now  be  broken  is,  I  think,  an  unfortunate  and  even  a  threatening 
episode,  and  one  that  may  well  suggest  whether  the  States  that  still 
give  their  approval  to  the  old  and  prevaihng  method  ought  not 
to  secure  by  a  constitutional  amendment  a  practice  which  has  had 
the  approval  of  all.  .  .  . 

Gerrymanders  for  Congressional  purposes  are  in  most  cases 
buttressed  by  a  gerrymander  of  the  legislative  districts,  thus  mak- 
ing it  impossible  for  a  majority  of  the  legal  voters  of  the  State  to 
correct  the  apportionment  and  equalize  the  Congressional  districts. 
A  minority  rule  is  established  that  only  a  political  convulsion  can 
overthrow.  I  have  recently  been  advised  that  in  one  county  of 
a  certain  State  three  districts  for  the  election  of  members  of  the 
legislature  are  constituted  as  follows :  One  has  65,000  population, 
one  15,000,  and  one  10,000,  while  in  another  county  detached, 
non-contiguous  sections  have  been  united  to  make  a  legislative 
district.  These  methods  have  already  found  effective  application 
to  the  choice  of  Senators  and  Representatives  in  Congress,  and 
now  an  evil  start  has  been  made  in  the  direction  of  applying  them 
to  the  choice  by  the  States  of  electors  of  President  and  Vice-Presi- 
dent. If  this  is  accomplished,  we  shall  then  have  the  three  great 
departments  of  the  Government  in  the  grasp  of  the  "gerrymander," 
the  legislative  and  executive  directly  and  the  judiciary  indirectly 
through  the  power  of  appointment. 


Nomination  and   Election  of  the   President     159 

An  election  implies  a  body  of  electors  having  prescribed  quali-   The  power 
fications,  each  one  of  whom  has  an  equal  value  and  influence  in   legislature 
determining  the  result.     So  when  the  Constitution  provides  that   not  unre- 
**each  State  shall  appoint"  (elect),  "in  such  manner  as  the  legis-   ti^is'^ matter 
lature  thereof  may  direct,  a  number  of  electors,"  etc.,  an  unre- 
stricted power  was  not  given  to  the  legislatures  in  the  selection 
of  the  methods  to  be  used.     "A  republican  form  of  government" 
is  guaranteed  by  the  Constitution  to  each  State,  and  the  power 
given  by  the  same  instrument  to  the  legislatures  of  the  States  to 
prescribe  methods  for  the  choice  by  the  State  of  electors  must  be 
exercised  under  that  limitation.     The  essential  features  of  such 
a  government  are  the  right  of  the  people  to  choose  their  own  offi- 
cers and  the  nearest  practicable  equality  of  value  in  the  suffrages 
given  in  determining  that  choice. 

It  will  not  be  claimed  that  the  power  given  to  the  legislature   The  gerry- 
would  support  a  law  providing  that  the  persons  receiving  the   ^™ubli-° 
smallest  vote  should  be  the  electors  or  a  law  that  all  the  electors   can"  in 
should  be  chosen  by  the  voters  of  a  single  Congressional  district. 
The  State  is   to   choose,   and  under  the  pretense  of  regulating 
methods  the  legislature  can  neither  vest  the  right  of  choice  else- 
where nor  adopt  methods  not  conformable  to  republican  institu- 
tions.    It  is  not  my  purpose  here  to  discuss  the  question  whether  a 
choice  by  the  legislature  or  by  the  voters  of  equal  single  districts 
is  a  choice  by  the  State,  but  only  to  recommend  such  regulation 
of  this  matter  by  constitutional  amendment  as  will  secure  uniform- 
ity and  prevent  that  disgraceful  partisan  jugglery  to  which  such  a 
liberty  of  choice,  if  it  exists,  offers  a  temptation. 

65.    Counting  the  Electoral   Votes  in  the  States 

Subject  to  the  provision  that  Congress  may  fix  the  day  for  choos- 
ing electors  and  the  day  on  which  they  must  cast  their  votes,  the 
Constitution  leaves  the  general  regulation  of  the  methods  of  casting 
the  vote  and  the  compensation  of  the  electors  to  the  rcs])ective 
States.  These  paragraphs  from  the  Oregon  laws  illustrate  the 
general  custom :  — 


character. 


i6o 


American   Government  and   Politics 


On  the  Tuesday  next  after  the  first  Monday  in  November,  1864, 
and  every  four  years  thereafter,  there  shall  be  elected  by  the  quali- 
fied electors  of  this  State  as  many  electors  of  president  and  vice 
president  as  this  State  may  be  entitled  to  elect  of  senators  and 
representatives  in  Congress. 

The  electors  of  president  and  vice  president  shall  convene  at  the 
seat  of  government  on  the  first  Wednesday  of  December  next  after 
the  election,  at  the  hour  of  twelve  of  the  clock  at  noon  of  that  day, 
and  if  there  shall  be  any  vacancy  in  the  office  of  an  elector,  occa- 
sioned by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise,  the 
electors  present  shall  immediately  proceed  to  fill  by  viva  voce  and 
plurality  of  votes,  such  vacancy  in  the  electoral  college,  and  when 
all  electors  shall  appear,  or  the  vacancies,  if  any,  shall  have  been 
filled  as  above  provided,  such  electors  shall  proceed  to  perform  the 
duties  required  of  them  by  the  constitution  and  laws  of  the  United 
States. 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and 
canvassed  as  the  same  are  given,  returned,  and  canvassed  for 
members  of  Congress.  The  Secretary  of  State  shall  prepare  two 
lists  of  the  names  of  the  electors  elected,  and  affix  the  seal  of  the 
State  to  the  same.  Such  lists  shall  be  signed  by  the  Governor 
and  Secretary,  and  by  the  latter  delivered  to  the  college  of  electors 
at  the  hour  of  their  meeting  on  such  first  Wednesday  of  December. 

Every  such  elector  who  shall  attend  at  the  time  and  place  ap- 
pointed, and  give  his  vote  for  president  and  vice  president,  shall 
be  entitled  to  receive  from  this  State  $3  for  each  day's  attendance 
at  such  election,  and  $3  for  every  twenty  miles'  travel  in  going  to 
and  returning  from  the  place  where  the  electors  shall  meet,  on  the 
usually  traveled  route. 


66.    The  Call  for  the  National  Convention 

The  rise  of  great  political  parties,  each  putting  forward  presi- 
dential and  vice-presidential  candidates,  has  completely  over- 
thrown the  idea  of  the  Fathers  that  the  chief  magistrate  should  be 
selected  by  a  small  number  of  specially  capable  men  removed 


Nomination  and  Election   of  the  President     i6i 

from  the  passions  and  interests  of  the  general  mass  of  the  popula- 
tion. The  composition  of  a  national  nominating  convention  is 
fully  described  by  the  following  call  signed  by  the  Chairman  and 
Secretary  of  the  Republican  national  committee,  instructing  Re- 
publicans to  choose  delegates  for  the  party  assembly :  — 

To  the  Republican  Electors  of  the  United  States: 

In  accordance  with  established  custom  and  in  obedience  to  Date  and 
instructions  of  the  Republican  National  Convention  of  1904,  the  conv^ention. 
Republican  National  Committee  now  directs  that  a  National 
Convention  of  delegates  representative  of  the  Republican  party 
be  held  in  the  city  of  Chicago,  in  the  State  of  Illinois,  at  12  o'clock 
noon,  on  Tuesday,  the  i6th  day  of  June,  1908,  for  the  purpose  of 
nominating  candidates  for  President  and  Vice  President,  to  be 
voted  for  at  the  Presidential  election,  Tuesday,  November  3,  1908, 
and  for  the  transaction  of  such  other  business  as  may  properly 
come  before  it. 

The  Republican  electors  of  the  several  States  and  Territories,   States  and 

territories. 

including  Hawaii,  the  District  of  Columbia,  Alaska,  Porto  Rico 
and  the  Philippine  Islands,  and  all  other  electors,  without  regard 
to  past  political  affihation,  who  believe  in  the  principles  of  the 
Republican  party  and  indorse  its  policies,  are  cordially  invited  to 
unite  under  this  call  in  the  selection  of  delegates  to  said  convention. 

Said  National  Convention  shall  consist  of  four  delegates-at-large  Composi- 
from  each  State,  two  delegates  for  each  Representative  at  large 
in  the  Congress,  two  delegates  from  each  Congressional  district 
and  from  each  of  the  Territories  of  Arizona,  New  Mexico  and 
Hawaii,  two  delegates  from  the  district  of  Columbia,  and  two 
delegates  each  from  Alaska,  Porto  Rico  and  the  Philippine  Islands. 
For  each  delegate  elected  to  this  convention  an  alternate  delegate 
shall  be  chosen  to  serve  in  case  of  the  absence  of  his  principal. 

The  delegates-at-large  and  their  alternates  shall  be  elected  by   Delegates- 
popular  State  and  Territorial  conventions,  of  which  at  least  thirty 
days'  notice  shall  have  been  published  in  some  newspaper   or 
newspapers    of   general   circulation    in    the    respective    State    or 
Territory. 


l62 


American   Government  and  Politics 


The  Congressional  district  delegates  shall  be  elected  by  con- 
vention called  by  the  Republican  Congressional  committee  of  each 
district,  of  which  at  least  thirty  days'  notice  shall  have  been  pub- 
lished in  some  newspaper  or  newspapers  of  general  circulation 
in  the  district;  provided,  that  in  any  Congressional  district  where 
there  is  no  Repubhcan  Congressional  committee,  the  Republican 
State  Committee  shall  be  substituted  for  and  represent  the  Congres- 
sional Committee  in  issuing  said  call  and  making  said  publication ; 
and  provided,  that  delegates  both  from  the  State  at  large  and  their 
alternates  may  be  elected  in  conformity  with  the  laws  of  the  State 
in  which  the  election  occurs;  provided,  the  State  Committee  or 
any  such  Congressional  committee  so  direct;  but,  provided 
further,  that  in  no  State  shall  an  election  be  so  held  as  to  prevent 
the  delegates  from  any  Congressional  district  and  their  alternates 
being  selected  by  the  Republican  electors  of  that  district. 

The  election  of  delegates  from  the  District  of  Columbia  shall 
be  held  under  the  direction  and  supervision  of  an  election  board 
composed  of  Sidney  Bieber,  Percy  Cranford  and  George  F.  Collins 
of  the  District  of  Columbia.  This  board  shall  have  authority  to 
fix  the  date  of  said  election,  subject  to  prior  provisions  herein, 
and  to  arrange  all  details  incidental  thereto,  and  shall  provide  for 
a  registration  of  the  votes  cast,  such  registration  to  include  the 
name  and  residence  of  each  voter. 

The  delegates  from  the  Territories  of  Arizona,  New  Mexico, 
Hawaii  and  from  Alaska  shall  be  selected  in  the  manner  of  select- 
ing delegates  at  large  from  the  States  as  provided  herein. 

The  delegates  from  Porto  Rico  and  the  Philippine  Islands  shall 
be  elected  in  conformity  with  certain  rules  and  regulations  adopted 
by  this  committee,  copies  of  which  are  to  be  furnished  to  the  gov- 
erning committees  of  the  Republican  party  in  Porto  Rico  and  the 
Phihppine  Islands. 

All  delegates  shall  be  elected  not  earlier  than  thirty  days  after 
the  date  of  this  call  and  not  later  than  thirty  days  before  the  date 
of  the  meeting  of  the  next  Republican  National  Convention. 

The  credentials  of  each  delegate  and  alternate  must  be  for- 


Nomination  and  Election  of  the  President      163 

warded  to  the  secretary  of  the  Republican  National  Committee 
at  Washington,  D.C.,  at  least  twenty  days  before  the  date  fixed 
for  the  meeting  of  the  convention,  for  use  in  making  up  its  tem- 
porary roll. 

In  any  case  where  more  than  the  authorized  number  of  delegates 
from  any  State,  Territory  or  delegate  district  are  reported  to  the 
secretary  of  the  National  Committee  a  contest  shall  be  deemed  to 
exist,  and  the  secretary  shall  notify  the  several  delegates  so  re- 
ported, and  shall  submit  all  such  credentials  and  claims  to  the 
whole  committee  for  decision  as  to  which  delegates  reported  shall 
be  placed  on  the  temporary  roll  of  the  convention. 

All  notices  of  contest  shall  be  submitted  in  vmting,  accompanied 
by  a  printed  statement  setting  forth  the  grounds  of  contest,  which 
must  be  filed  with  the  secretary  of  the  committee  twenty  days 
prior  to  the  meeting  of  the  National  Convention. 

Elmer  Dover,  Secretary. 
Harry  S.  New,  Chairman. 

While  the  composition  of  the  Democratic  convention  is  prac- 
tically the  same  as  that  of  the  Republican  convention,  the  mode 
of  choosing  delegates  differs  in  many  states ;  for,  as  the  following 
call  indicates,  a  larger  freedom  is  given  to  the  Democratic  organi- 
zation of  each  state  in  the  choice  of  its  quota  of  delegates. 

Washington,  D.C,  January  18,  1904. 

The  Democratic  National  Committee,  having  met  in  the  City 
of  Washington  on  the  12th  day  of  January,  1904,  has  appointed 
Wednesday,  July  6,  1904,  as  the  time,  and  chosen  St.  Louis,  Mis- 
souri, as  the  place  for  holding  the  Democratic  National  Convention. 

Each  State  is  entitled  to  representation  therein  equal  to  double 
the  number  of  its  Senators  and  Representatives  in  the  Congress 
of  the  United  States,  and  each  Territory,  Alaska,  Indian  Territory 
and  the  District  of  Columbia  shall  have  six  delegates.  All  Demo- 
cratic citizens  of  the  United  States  who  can  unite  with  us  in  the 
effort  for  a  pure  and  economical  constitutional  government  are 
cordially  invited  to  join  us  in  sending  delegates  to  the  Convention. 

James  K.  Jones,  Chairman. 
C.  A.  Walsh,  Secretary. 


164  American   Government  and  Politics 

67.    Convention  Oratory 

The  nomination  of  the  candidates  for  the  presidency  and  vice 
presidency  is,  of  course,  the  chief  business  of  a  national  conven- 
tion and  the  point  around  which  the  party  warfare  is  waged. 
The  placing  of  the  various  candidates  before  the  convention  is  a 
high  art,  and  although  it  seldom  has  much  effect  on  the  outcome 
of  the  balloting,  the  presentation  speech  is  regarded  as  an  occa- 
sion for  oratory  of  a  peculiarly  American  type.  The  following 
extract  from  a  speech  by  Mr.  Martin  W.  Littleton,  nominating 
Mr.  Alton  B.  Parker  in  1904,  may  be  regarded  as  illustrating 
convention  oratory  of  a  superior  character : 

The  country,  anxious  to  win  in  this  great  crisis,  called  upon  New 
York  as  the  battleground.  New  York  answers  with  a  candidate 
who  carried  the  State  by  sixty  thousand  majority.  (Applause.) 
The  country  called  upon  New  York  for  the  best  of  its  brain  and 
blood,  and  New  York  answers  with  a  man  who  cut  his  way  through 
poverty  and  toil  until  he  found  the  highest  peak  of  power  and  honor 
in  the  State.  (Applause.)  The  country  called  upon  New  York  for 
a  Democrat,  and  New  York  answers  with  a  man  who  learned  the 
simple  lessons  of  Democratic  faith  in  the  furrowed  field,  who  took 
them  with  increasing  strength  to  the  bar  and  finally  honored  them 
by  his  exalted  station  on  the  bench  —  a  man  who,  throughout  his 
career  from  poverty  to  power,  never  in  fair  weather  or  foul  forsook 
the  standards  of  his  party  faith  or  deserted  the  colors  of  his  com- 
mand. (Applause.)  As  my  brilliant  and  amiable  and  distin- 
guished friend.  Senator  Daniel,  of  Virginia,  says,  a  Democrat 
who  never  scratched  the  ticket  in  all  his  life.  (Applause.)  The 
country  called  upon  New  York  for  a  Democrat  free  from  factional 
dispute,  and  New  York  answers  with  a  man  friendly  to  all  factions, 
but  a  favorite,  or  afraid  of  none;  a  man  who  will  take  counsel  and 
courage  of  both,  but  who  will  take  the  bitterness  of  neither  —  a 
man  who  will  not  stir  the  hatred  of  the  past  nor  share  the  acrimony 
of  the  present,  but  who  will  lead  us  up  toward  the  future  into  a 
cloudless  atmosphere  of  party  peace.  (Applause.)  The  country 
called  upon  New  York  for  a  man  who  measured  up  to  the  stature 


Nomination  and   Election  of  the   President      165 

of  this  lofty  place,  and  New  York  answers  with  a  candidate  who 
grew  from  youth  to  man  in  the  humble  walks  of  life ;  who  lived  and 
learned  what  all  our  common  folk  must  live  and  learn ;  a  man  who 
ripened  vnth  advancing  years  in  the  rich  attainments  of  the  law 
until  he  went,  by  choice  of  those  who  knew  him  best,  to  hold  the 
heavy  scale  of  justice  at  the  highest  point  of  our  great  judicial 
system,  where,  with  the  masters  who  moulded  State  and  Nation, 
and  the  men  who  drive  commerce  o'er  the  wheel  of  Time,  he  sur- 
veyed to  the  very  ground  every  inch  of  this  great  Republic  and 
saw  with  expanding  vision  the  material  growth  and  glory  of  his 
State.     (Applause.) 

The  country  called  upon  New  York  for  a  man  to  fit  this,  the  ^^'■-  Parker 
critical  hour  andjjlace  in  our  national  life,  and  New  York  answers  the  Con- 
with  a  man  who  puts  against  the  strenuous  sword  play  of  a  swag-  stitution. 
gering  administration,  a  simple  faith  in  all  the  perfect  power  of 
the  Constitution  (applause) ;  a  man  who  puts  against  an  executive 
republic  the  virtue  of  a  constitutional  republic;  a  man  who  puts 
against  executive  usurpation  a  knowledge  of  and  a  deep  love  for 
the  poise  and  balance  of  its  three  great  powers;  a  man  who  puts 
against  the  stealthy  hunt  "with  the  big  stick"  a  faithful  observance 
of  constitutional  restraints.  The  country  called  upon  New  York 
for  a  man  of  stainless  character  in  private  and  public  hfe,  and  New 
York  answers  with  a  man  whose  path  leads  from  the  sweet  and 
simple  fireside  of  his  country  home  where  he  enjoys  the  gentle 
society  of  his  family,  to  his  place  of  labor  and  honor  at  the  head  of 
one  of  the  greatest  courts  of  Christendom.  And  nowhere  through 
his  active  and  useful  life  has  aught  but  honest  praise  found  utter- 
ance on  the  lips  of  those  who  know  him  best.  (Applause.)  If  you 
ask  me  why  he  has  been  silent,  I  tell  you  it  is  because  he  does  not 
claim  to  be  the  master  of  the  Democratic  party,  but  is  content  to 
be  its  servant.  (Applause.)  If  you  ask  me  why  he  has  not  out- 
lined a  policy  for  this  Convention,  I  tell  you  that  he  does  not  be- 
lieve that  policies  should  be  dictated,  but  that  the  sovereignty  of 
the  party  is  in  the  untrammeled  judgment  and  wisdom  of  its  mem- 
bers (applause) ;   if  you  ask  mc  what  his  policy  will  be,  if  elected, 


1 66 


American  Government  and  Politics 


I  tell  you  it  will  be  that  policy  which  finds  expression  in  the  plat- 
form of  his  party. 

With  these,  as  some  of  the  claims  upon  your  conscience  and 
judgment,  New  York  comes  to  you,  flushed  with  hope  and  pride. 
We  appeal  to  the  South,  whose  unclouded  vision  and  iron  courage 
saw  and  fought  the  way  for  half  a  century;  whose  Jefferson  awoke 
the  dumb  defiance  of  development  into  a  voice  that  cried  out  to 
the  world  a  curse  upon  the  rule  of  kings  and  a  blessing  upon  a 
new-born  republic;  whose  Madison  translated  the  logic  of  events 
and  the  law  of  progress  into  the  Constitution  of  the  country; 
whose  Jackson  reclaimed  the  lost  places  of  the  far  South  and 
democratized  the  politics  of  the  nation ;  and  whose  soldiers  showed 
the  wondering  world  the  finest  fruits  of  brain  and  nerve  and  heart 
that  ripen  in  her  temperate  sun,  and  who,  througn  all  the  sons  she 
lost,  and  all  the  sons  she  saved  and  all  the  tears  she  shed  amid  the 
sorrowful  ruins  of  war  —  and  through  all  the  patient  loyalty  and 
labor  of  after  years  so  wrought  for  human  happiness  that  all  the 
world  exclaims,  ''Her  greatness  in  peace  is  greater  than  her  valor 
in  war."  We  appeal  to  you  of  the  Old  South  and  the  New  to  join 
vdth  us  in  this  contest  for  the  supremacy  of  our  party.  We  appeal 
to  the  West,  whose  frontier  struggles  carried  our  civilization  to  the 
Pacific  slopes,  whose  courage  conquered  the  plain  and  the  forest, 
and  whose  faithful  labor  has  built  beautiful  cities  clear  through 
to  the  Rocky  Mountains.  We  appeal  to  you,  as  he  did  follow 
your  leadership  through  eight  long  years  of  controversy,  you  turn 
and  follow  him  now  when  victory  awaits  us  in  November.  We 
appeal  to  New  England,  faithful  sentinel  among  her  historic  hills, 
in  the  name  of  all  her  unfaltering  and  brilliant  Democrats,  living 
and  dead,  to  join  us  in  our  labor  for  success.     (Apj)lause.) 

We  appeal  to  every  Democrat  from  everywhere  to  forget  the 
bitter  warfare  of  the  past;  forget  the  strife  and  anger  of  the  older, 
other  days;  abandon  all  the  grudge  and  rancor  of  party  discon- 
tent, and,  recalling  with  ever  increasing  pride,  the  triumphs  of  our 
fifty  years  of  a  constitutional  government  of  Liberty  and  Peace  — 
here  and  now  resolve  to  make  the  future  record  that  resi)lendent 


Nomination  and  Election  of  the  President      167 

reach  of  time  in  which  Liberty  and  Peace  went  up  and  down  the 
nations  of  the  earth,  building  their  kingdom  in  the  hearts  of  men 
and  gathering  the  harvest  of  genius  and  toil;  in  which  reason 
struck  from  the  hand  of  force  the  sword  of  hate  and  plucked  from 
the  heart  of  war  the  germ  of  greed;  in  which  conscience  smote  the 
thoughts  of  wrong  and  filled  the  mind  with  mercy's  sweet  restraint; 
in  which  power  grew  in  the  human  brain,  but  refused  the  shelter 
of  a  glittering  crown ;  in  which  the  people  of  all  lands  and  tongues, 
awakened  to  hope  by  the  inspiration  of  our  example,  turned  their 
faces  toward  the  light  of  our  advancing  civilization  and  followed 
with  the  march  of  years  the  luminous  pathway  leading  to  a  destiny 
beyond  the  reach  of  vision  and  within  the  providence  of  God. 
In  this  spirit  New  York  nominates  for  President  of  the  United 
States  Alton  B.  Parker. 

68.    The  Democratic  Unit  Rule 

The  delegates  of  a  state  at  a  Republican  convention  may  vote 
either  according  to  their  individual  preferences  or  the  instructions 
received  from  the  local  and  state  conventions  sending  them,  and 
thus  a  state  delegation  may  be,  and  often  is,  divided  against  itself. 
In  the  Democratic  party,  however,  a  majority  of  the  delegates  of 
any  one  state  may  decide  how  the  vote  of  the  entire  delegation  is 
to  be  cast.  The  practice  is  illustrated  by  the  application  of  the 
principle  to  an  appeal  of  the  Ohio  delegation  at  the  Democratic 
national  convention  in  1904. 

Mr.  Thomas  McNamara,  of  Ohio  (when  the  vote  of  Ohio  was   Demand 
announced) :    I  demand  that  the  Ohio  delegation  be  polled.  oT the' vote 

The  Presiding  Officer:  Does  the  gentleman  question  the  cor- 
rectness of  the  figures? 

Mr.  McNamara:    I  do. 

The  Presiding  Officer:  Then  the  gentleman  from  Ohio  is  en- 
titled to  a  poll  of  the  delegation. 

The  delegation  was  polled  and  the  result  was  announced  Parker 
28,  Hearst  6,  McClellan  9,  Cockrell  2,  Olney  i. 

Mr.  E.  H.  Moore,  of  Ohio :   I  rise  to  a  point  of  order. 


i68 


American   Government  and   Politics 


The  Presiding  Officer:  The  gentleman  will  state  his  point  of 
order. 

Mr.  Moore :  I  desire  the  ruling  of  the  Chair  upon  the  question 
whether  or  not  the  vote  of  Ohio  can  be  cast  as  a  unit.  The  dis- 
trict delegates  are  chosen  in  Ohio,  not  as  they  are  in  New  York  or 
Indiana,  by  delegates  elected  to  the  State  Convention,  but  by 
Congressional  Conventions  held  prior  to  the  time  of  the  holding 
of  the  State  Convention.  My  point  is  that  the  State  Convention 
therefore  had  no  right  to  instruct  these  delegates. 

Second,  the  rule,  as  the  Chair  will  observe,  is  a  modified  one. 
It  does  not  impose  upon  the  delegates  the  necessity  of  voting  as  a 
unit. 

I  desire  the  ruling  of  the  Chair.  The  district  delegates  receive 
their  credentials  at  the  District  Conventions,  held  at  separate  times, 
by  delegates  separately  chosen,  and  in  no  wise  hold  their  creden- 
tials from  the  State  Convention.  Therefore,  our  contention  is  that 
the  State  Convention  had  no  power  to  impose  the  unit  rule  upon 
them. 

The  Presiding  Officer :  The  Chair  overrules  the  point  of  order. 
By  express  rule  of  the  Democratic  Convention,  the  delegates  come 
from  a  State  and  not  from  districts.  Under  the  call  for  delegates 
to  this  Convention,  each  State  is  allowed  as  many  delegates  as  it 
has  Senators  and  Representatives,  multiphed  by  two;  and  those 
delegates  are  the  delegates  of  the  State  and  not  the  delegates  of  the 
districts,  no  matter  how  chosen.  And  even  if  the  call  itself  did 
not  determine  the  point  of  order,  the  express  rule  of  Democratic 
National  Conventions  does  determine. 

The  point  of  order  is  overruled,  and  the  poll  of  the  Ohio  delega- 
tion showing  that  Parker  has  received  twenty-eight  of  the  forty-six 
votes  to  which  that  State  is  entitled  in  this  Convention,  the  vote 
of  Ohio  will  stand  as  announced  by  the  Chairman  of  that  delega- 
tion [i.e.  forty-six  for  Parker]. 


Nomination  and  Election  of  the  President      169 

69.    The  Chairman  of  the  National  Committee 

The  direction  of  the  presidential  campaign  falls  principally 
on  the  chairman  of  the  national  committee,  who  is  selected  by 
the  presidential  candidate  of  the  party  in  consultation  with  his 
leading  advisers.  The  power  of  this  extra-legal  officer  in  manag- 
ing political  affairs  is  thus  described  by  Mr.  Rollo  Ogden  in  the 
Atlantic  Monthly :  — 

Senator  Hanna  has  outstripped  all  his  predecessors  in  making  Mr.  Hanna 
the  chairmanship  of  the  national  committee  a  centre  of  political  ^^  ^^^  ^  ^^ 
power.  Happy  accidents  have  conspired  with  great  skill  and  1896. 
determination  on  his  part  to  bring  about  such  a  consummation. 
He  has  now  [1902]  held  the  office  continuously  for  five  years  — 
indeed  practically  for  seven  years.  It  was  in  1893  or  1894  that 
Mr.  Hanna,  then  little  known  outside  of  Ohio,  set  about  in  his 
long-headed  and  far-planning  way,  the  election  of  Mr.  McKinley 
to  the  presidency.  He  perceived  the  thickening  signs  of  a  politi- 
cal reaction  and  in  them  he  saw  the  great  opportunity  for  his 
friend  Mr.  McKinley,  and  also  for  himself.  The  history  of  that 
campaign  before  the  campaign  of  1896  has  never  been  written-f 
but  enough  of  it  is  known  to  show  the  signal  ability  and  resolution 
with  which  it  was  planned  and  fought.  Long  before  the  Repub- 
lican convention  met,  old  masters  like  Senators  Chandler,  Quay 
and  Piatt  recognized  the  rise  of  a  political  manipulator  greater 
than  themselves.  This  is  referred  to  at  present  only  to  make  the 
point  that  Mr.  Hanna  was  party  chairman  in  fact  two  years  before 
he  became  so  in  name. 

In  the  course  of  those  preliminary  manoeuvres  he  had  swept  every- 
thing before  him  so  that  his  accession  to  the  chairmanship  was 
foregone.  On  the  heels  of  that  came  his  election  to  the  Senate. 
This  both  heightened  his  prestige  and  put  him  in  a  position  to 
assert  and  extend  his  power  as  National  Chairman.  In  the  latter 
capacity  (counting  his  two  years  or  more  of  antecedent  campaign- 
ing for  the  nomination  of  Mr.  McKinley  in  1896)  he  had  made  a 
host  of  pre-election  pledges.     His  post  in  the  Senate  enabled  him 


1 7© 


American   Government  and   Politics 


Sources  of 
the  chair- 
man's 
power. 


to  see  that  they  were  carried  out.  Never,  it  is  safe  to  say,  did  a 
party  chairman  previously  have  so  much  to  do  with  the  appor- 
tionment of  party  patronage.  The  president  gave  him  substan- 
tially a  free  hand  in  the  South.  Then  there  came  along  the 
Spanish  war,  yielding  our  Cassar  chairman  further  meat  on  which 
to  grow  great.  Thousands  of  new  appointments  had  to  be  made. 
For  each  applicant  the  endorsement  of  Chairman  Hanna  was 
eagerly  sought.  His  power  grew  by  power.  After  four  years  of 
its  gradual  increase  came  another  successful  campaign  for  the 
presidency  under  his  management.  ... 

It  is  difficult  to  set  off,  each  by  itself,  the  elements  of  the  political 
power  of  the  party  national  committee,  vested  largely  in  its  chair- 
man, for  the  reason  that  they  are  all  inextricably  interdependent. 
The  chairman  has  the  spending  of  vast  sums  of  money:  this 
gives  him  political  power.  But  he  has  the  money  to  spend  only 
because  he  is  first  in  a  position  of  political  power.  So  of  his  rights 
of  patronage;  of  control  of  party  conventions,  big  and  little;  of 
his  dictation  in  both  party  manoeuvring  and  pubhc  legislation: 
all  these  things  dovetail  into  one  another  and  appear  now  as  a 
cause,  now  as  a  consequence.  .  .  .  He  has,  for  example,  millions 
of  dollars  to  disburse.  There  is  good  authority  for  the  assertion 
that  the  Republican  campaign  fund  of  1896  was  upwards  of  seven 
millions  of  dollars.  Mr.  Hanna  argued  in  1900  that  it  ought  to 
be  twice  as  great,  —  presumably  because  the  country  was  twice 
as  prosperous.  At  all  events,  he  was  not  cramped  for  funds  in 
either  year.  Now  the  outlay  of  such  huge  sums  necessarily  means 
an  increment  of  power  for  the  man  who  controls  it.  Such  vdll 
be  the  case  if  he  is  the  most  unselfish  and  incorruptible  of 
mortals.  Money  is  power  in  politics  as  everywhere  else.  A 
chairman  who  may  determine  how  much  is  to  be  allotted  to  this 
state,  that  congressional  district,  this  city  and  the  other  county, 
becomes  inevitably  the  master  of  many  political  legions.  There 
is  no  need  of  a  hard-and-fast  understanding  between  the  giver 
and  the  recipient,  —  least  of  all  any  corrvipt  bargain.  Common 
gratitude  and  the  expectation  of  similar  favors  to  come  are  enough 


Nomination   and   Election  of  the   President      171 

to  bind  fast  the  nominee  for  congress,  the  candidate  for  a  senator- 
ship,  or  the  member  of  the  national  committee  for  any  given  state, 
a  part  of  whose  campaign  expenses  has  been  kindly  paid  for  him 
from  headquarters.  It  is  really  hard  to  think  ill  of  the  man  who 
has  sent  you  a  large  check.  To  oppose  your  humble  opinion  to 
his  necessarily  large  and  enlightened  view  of  party  policy  and 
pubUc  advantage  is  sheer  presumption.  To  vote  for  him  or  vtith 
him  or  as  he  bids  you  is  thereafter  obviously  the  line  of  least  re- 
sistance. Thus  it  is  that  the  bread  which  the  national  chairman 
casts  upon  the  waters  returns  to  him  after  not  so  many  days. 

The  pecuniary  aspect  of   the  chairman's  power  has   another  The  chair- 
feature.     He  collects  as  well  as  pays  out;    and  with  many  of  the   p^rty 
collections  goes  an  express  or  tacit  party  obligation  which  he  alone   finance, 
is  fully  cognizant  of,  and  which  it  is  his  particular  duty  to  see 
carried  out.     Rich  men  do  not  always  contribute  to  party  in  obedi- 
ence to  the  Scriptural  injunction  to  give,  asking  not  again.     They 
make  conditions  either  openly,  or  by  hint,  or  gesture.  .  .  .     Our 
own  wealthy  contributors  to  the  party  treasury  have  been  sus- 
pected of  coupling  their  gifts  with  an  understanding  about  the 
tariff,  about  the  seal  fisheries,  about  ship  subsidies  and  what  not. 
It  is  not  necessary  to  go  into  this. 

70.    The  National  Campaign  * 

The  waging  of  a  great  contest  designed  to  influence  millions  of 
voters  is  a  remarkable  undertaking,  the  character  of  which  may 
be  partially  estimated  by  this  account  of  the  methods  adopted  by 
the  Republican  party  organization  in  the  memorable  "campaign 
of  education,"  in  1896:  — 

Since  the  beginning  of  the  campaign  the  Republican  National   The  pam- 

^  .  ,         .  ?    ,  ,.  ,      ,  ,  ,       ,    Phlet  litera- 

Committee  has  issued  the  astoundmg  total  of  over  two  hundred   j^^g 
millions  of  copies  of  documents.     There  were  also  issued,  under 
the  direction  of  the  same  committee,  about  fifty  million  copies  of 
documents  from  the  hcadcjuarters  of  the  Republican   Congres- 
sional Campaign  Committee  at  Washington.     All  this  work  has 


172 


American   Government  and   Politics 


Arrange- 
ments with 
the  news- 
papers. 


The  use  of 
posters. 


been  done  through  the  Bureau  of  Publication  and  Printing. 
There  have  been  prepared  more  than  275  pamphlets  and  leaflets, 
besides  scores  of  posters,  sheets  of  cartoons,  inscriptions  and  other 
matter  touching  on  various  phases  of  the  campaign  issues.  The 
distribution  of  these  documents  was  generally  made  through  the 
state  central  committees.  About  20,000  express  packages  of  docu- 
ments were  shipped,  nearly  5000  freight  packages,  and  probably 
half  a  million  packages  by  mail.  These  documents  were  printed 
in  German,  French,  Spanish,  Italian,  Swedish,  Norwegian,  Fin- 
nish, Dutch  and  Hebrew,  as  well  as  in  English. 

The  duties  of  the  editorial  department  of  the  Republican  Liter- 
ary Bureau  at  Chicago  did  not  end  with  the  preparation  of  the 
many  documents  to  which  allusion  has  been  made,  but  some  notion 
of  the  extent  of  those  duties  may  be  had  when  the  fact  is  stated 
that  a  preferred  list  of  country  newspapers,  with  an  aggregate 
weekly  circulation  of  1,650,000,  received  three  and  a  half  columns 
of  specially  prepared  matter  every  week;  another  list  of  country 
newspapers,  with  an  aggregate  weekly  circulation  of  about 
1,000,000,  received  plate  matter;  three  special  classes  of  country 
weekly  and  daily  papers  were  supplied  with  statements  aggre- 
gating about  3,000,000  copies  every  week,  and  lastly,  a  special 
class  of  country  newspapers  received  "ready  prints" —  the  entire 
weekly  circulation  being  about  4,000,000  copies.  Hundreds  of 
other  newspapers  depended  in  a  large  measure  for  their  political 
matter  during  the  campaign  upon  the  Publication  and  Printing 
Bureau  and  were  circulated  under  the  direction  of  this  bureau. 
It  is  a  safe  estimate  that  every  week  5,000,000  families  received 
newspapers  of  various  kinds  containing  political  matter  furnished 
by  this  bureau,  —  probably  three  times  the  aggregate  in  volume 
and  influence  of  any  newspaper  work  ever  before  conducted  by  a 
national  political  committee. 

The  Republican  Committee  also  made  large  use  of  political 
posters,  probably  500  being  circulated  under  the  direction  of  the 
Publication  and  Printing  Bureau.  The  most  popular  poster  sent 
out  from  Chicago  was  the  five-colored,  single-sheet    lithograph. 


Nomination  and  Election  of  the  President      173 

so  widely  circulated  at  the  St.  Louis  convention,  bearing  a  portrait 
of  Mr.  McKinley  with  the  inscription  underneath,  "The  Advance 
Agent  of  Prosperity."  The  number  of  copies  of  this  poster  cir- 
culated is  said  to  have  been  almost  beyond  computation  or  com- 
prehension. Another  poster  which  had  an  immense  run  was  in 
plain  black  and  bore  the  title,  "The  Real  Issue."  It  represented 
McKinley  addressing  a  multitude  of  laborers  in  front  of  factories, 
declaring  that  it  was  better  to  open  the  mills  of  the  United  States 
than  the  mints,  while  Mr.  Bryan,  on  the  other  side  in  front  of  the 
United  States  mint,  was  welcoming  the  people  of  all  races  with 
'their  silver  bullion  for  free  coinage.  The  great  volumes  of  factory 
smoke  and  the  throng  of  eager  workmen  on  McKinley's  side  were 
in  strong  contrast  with  the  group  of  foreigners  dumping  their 
silver  in  front  of  the  Bryan  mints.  .  .  . 

The  work  of  the  congressional  campaign  committees  has  been  The  con- 
far  more  important  this  year  than  ever  before.  The  RepubHcan  fomrniuee's 
committee,  under  the  chairmanship  of  the  Hon.  J.  W.  Babcock  work. 
of  Wisconsin,  has  been  hard  at  work  since  early  in  June,  and, 
like  the  National  Committee  at  Chicago,  it  has  broken  its  own 
record.  The  committee  has  printed  23  different  documents. 
Of  a  single  speech  in  Congress,  that  delivered  by  Representative 
McCleary  of  Minnesota  in  the  House  last  February,  in  reply  to 
his  colleague.  Representative  Towne,  the  committee  has  issued 
2,500,000  copies.  Another  popular  money  document  issued  by 
the  committee  was  Representative  Babcock 's  speech  on  the  his- 
tory of  money  and  financial  legislation  in  the  United  States.  In 
the  list  of  pamphlets  sent  out  by  the  committee  were  speeches  by 
Senator  Sherman,  Mr.  Blaine,  Representative  Dingley,  Speaker 
Reed  and  others.  The  committee  did  not  restrict  itself  to  the  dis- 
tribution of  Congressional  speeches,  but  chose  such  other  ammu- 
nition as  seemed  adapted  for  the  purpose  in  view.  A  pamphlet  of 
forty  pages  was  prepared,  dealing  with  the  silver  question  in  a 
conversational  way,  and  this,  although  one  of  the  longest,  proved 
to  be  one  of  the  most  popular  demands  sent  out.  The  silver  ques- 
tion was  not  treated  wholly  to  the  exclusion  of  the  tariff  in  these 


174 


American   Government  and  Politics 


documents,  but  in  the  latter  weeks  of  the  campaign  it  was  found 
that  the  demand  for  tarifif  literature  gradually  increased  and  a 
large  proportion  of  the  documents  distributed  from  Washington 
dealt  with  that  subject. 

The  distribution  of  Republican  literature  from  New  York 
City  was  placed  in  the  hands  of  the  American  Protective  Tariff 
League.  Some  twenty  millions  of  documents  were  sent  out  from 
the  headquarters  in  West  Twenty-third  Street,  New  York  City, 
to  points  east  and  north  of  the  Ohio  River.  Each  Congressional 
district  in  the  territory  covered  was  assigned  a  pro  rata  quota  of 
documents,  and  additional  shipments  were  made  from  time  to  time 
as  required.  The  League's  own  work  of  editing  and  printing 
material  for  campaign  purposes  was  done  in  a  most  systematic 
and  admirable  manner. 

Considering  the  remarkable  expenditures  for  the  dissemination 
of  argument  by  means  of  the  printed  page,  the  poster,  and  the  car- 
toon, it  might  have  been  supposed  that  in  this  campaign  oratory 
would  have  had  but  a  minor  part.  Then,  too,  the  economic 
and  statistical  problems  of  a  nation's  currency  have  not  usually 
lent  themselves  with  grace  to  the  fiery  utterances  of  the  political 
orator.  But  in  this  respect  also  the  present  year's  campaigning 
has  been  exceptional.  The  oratorical  powers  of  the  opposing  can- 
didates had  not  a  little  to  do  with  the  winning  of  each  nomination 
—  in  the  one  case  directly,  in  the  other  just  as  truly  if  less  con- 
spicuously. Mr.  Bryan  set  his  own  pace  in  his  Chicago  convention 
speech.  Mr.  McKinley  was  known  at  the  start  as  one  of  the 
greatest  campaign  orators  of  his  time.  Neither  of  these  men 
could  be  forced  to  obey  the  tradition  which  required  silence  of 
presidential  candidates. 

Mr.  Bryan's  speechmaking  record  has  been  the  most  wonderful 
one  in  the  history  of  American  presidential  campaigns.  Poor 
Horace  Greeley's  famous  tour  in  1872  and  Mr.  Blaine's  extended 
journeyings  in  1884  are  made  to  seem  insignificant  in  comparison. 
On  the  night  before  election,  if  present  plans  are  carried  out, 
Mr.  Brj'an  will  have  made  about  four  hundred  reported  speeches 


Nomination  and  Election  of  the   President      175 

in  twenty-nine  states.  No  previous  candidate  for  the  presidency 
ever  attempted  such  a  feat  as  this.  Day  after  day  this  speech- 
making  has  gone  on  —  much  of  it  from  the  rear  platforms  of  rail- 
way trains,  while  the  telegraph  and  the  daily  newspaper  have 
carried  the  speaker's  utterances  everywhere.  Here  again  must  be 
considered  the  matchless  service  of  the  press,  without  which  the 
orator's  words  could  reach  but  a  limited  number. 

But  for  Mr.  McKinley  too,  this  has  been  a  speechmaking  cam-   Mr. 
paign.     He  has  remained  at  his  home  in  Canton,  but  auditors   sneakTaf 
have  come  to  him  from  far  and  near.     There  is  a  precision,  a  fixed   home, 
adherence  to  schedule,  in  the  arrangements  for  receiving  and  ad- 
dressing   delegates  at   Canton  which  is    wholly  lacking  in  the 
Bryan  "steeple  chasing"  programme.     Mr.  McKinley's  speeches 
have  been  prepared  with  care  and  fully  reported  by  the  press. 


CHAPTER    X 


THE   POWERS    OF    THE   PRESIDENT 


71.    Constitutional  Provisions 

The  following  brief  clauses  of  the  federal  Constitution  sum 
up  the  powers  ^  and  duties  of  the  chief  magistrate :  — 

1.  The  President  shall  be  commander-in-chief  of  the  army  and 
navy  of  the  United  States,  and  of  the  militia  of  the  several  States 
when  called  into  the  actual  service  of  the  United  States;  he  may 
require  the  opinion  in  writing  of  the  principal  officer  in  each  of  the 
executive  departments  upon  any  subject  relating  to  the  duties  of 
their  respective  offices ;  and  he  shall  have  power  to  grant  reprieves 
and  pardons  for  offenses  against  the  United  States,  except  in  cases 
of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent  of 
the  Senate,  to  make  treaties,  provided  two-thirds  of  the  senators 
present  concur;  and  he  shall  nominate,  and  by  and  with  the  ad- 
vice and  consent  of  the  Senate,  shall  appoint  ambassadors,  other 
public  ministers  and  consuls,  judges  of  the  Supreme  Court,  and 
all  other  officers  of  the  United  States,  whose  appointments  are  not 
herein  otherwise  provided  for  and  which  shall  be  established  by 
law;  but  the  Congress  may  by  law  vest  the  appointment  of  such 
inferior  officers  as  they  think  proper  in  the  President  alone,  in  the 
courts  of  law,  or  in  the  heads  of  departments. 

3.  The  President  shall  have  power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  Senate,  by  granting  commis- 
sions, which  shall  expire  at  the  end  of  their  next  session. 

He  shall,  from  time  to  time,  give  to  the  Congress  information  of 

'  The  general  executive  power  is  also  vested  in  the  President;  see  above,  p.  154. 

176 


The  Powers  of  the   President 


177 


the  state  of  the  Union,  and  recommend  to  their  consideration  such 
measures  as  he  shall  judge  necessary  and  expedient;  he  may, 
on  extraordinary  occasions,  convene  both  houses,  or  either  of  them ; 
and  in  case  of  disagreement  between  them,  with  respect  to  the  time 
of  adjournment,  he  may  adjourn  them  to  such  time  as  he  shall  think 
proper;  he  shall  receive  ambassadors  and  other  public  ministers; 
he  shall  take  care  that  the  laws  be  faithfully  executed,  and  shall 
commission  all  the  ofiEicers  of  the  United  States.^ ' 


Duties  of  the 
President. 


72.    The  President  as  Head  of  the  National  Administration'^ 

The  relation  of  the  great  executive  departments  to  the  President 
on  one  hand,  and  to  Congress  on  the  other,  has  never  been  nicely 
defined,  and  indeed  it  cannot  be,  frOm  the  very  nature  of  the  case. 
Congress,  having  power  to  create  the  departments  and  prescribe 
their  duties,  may  obviously  narrowly  restrict  the  head  officer. 
This  seems  entirely  necessary  and  proper,  but  it  is  also  obvious 
that,  while  the  main  outlines  of  the  movements  of  the  executive 
may  be  marked  out,  "there  are  numberless  things  which  cannot 
be  anticipated  and  defined,  and  are  essential  to  useful  and  healthy 
action  of  government."  -  The  whole  problem  is  discussed  in  an 
opinion  by  Attorney  General  Cushing  in  1855,  from  which  a  few 
extracts  are  given  here  :  — 

Now,  by  the  explicit  and  emphatic  language  of  the  Constitution,  Constitu- 
the  executive  power  is  vested  in  the  President  of  the  United  States. 
In  the  perception,  however,  of  the  fact  that  the  actual  adminis- 
tration of  all  executive  power  cannot  be  performed  personally 
by  one  man,  —  that  this  would  be  physically  impossible,  and  that 
if  it  were  attempted  by  the  President,  the  utmost  ability  of  that  one 
man  would  be  consumed  in  official  details  instead  of  being  left 
free  to  the  duty  of  general  direction  and  supervision,  —  in  the 
perception,  I  say,  of  this  fact,  the  Constitution  provides  for  the 
subdivision  of  the  executive  powers,  vested  in  the  President,  among 
administrative  departments,  using  that  term   now  in  its  narrower 

*  For  his  veto  power,  see  below,  p.  217. 

2  This  question  is  considered  in  Fairlie,  National  Administration  of  the  United 
States,  pp.  16  sqq. 
N 


tional  pro- 
visions for 
subdivision 
of  executive 
functions. 


178  American   Government  and   Politics 

and  ordinary  sense.  What  those  "executive  departments"  shall 
be,  either  in  number  or  functions,  the  Constitution  does  not  say, 
any  further  than  to  determine  that  certain  appointments  may  be 
made  by  their  "heads,"  respectively,  and  that  the  President  may 
require  in  writing  the  advice  of  any  such  "head"  or  "principal 
officer  in  each  of  the  Executive  Departments,"  for  which  reason 
those  officers  are  sometimes  characterized,  and  not  improperly, 
as  "constitutional  advisers"  of  the  President.  Meanwhile,  the 
great  constitutional  fact  remains,  that  the  "executive  power" 
is  vested  in  the  President,  subject  only,  in  the  respect  of  appoint- 
ments and  treaties,  to  the  advice  and  consent  of  the  Senate. 
The  creation  To  constitute  the  "executive  departments,"  through  the  instru- 
departments  iTientality  of  which,  in  part,  the  President  was  to  administer 
government,  became  one  of  the  earliest  objects  of  the  first  con- 
stitutional Congress;  and  we  must  look  to  its  acts  for  knowledge 
of  the  administrative  system,  which,  in  its  great  outlines,  the  states- 
men of  the  constitutional  era  established  as  it  exists  at  this  day. 
They  commenced  with  the  erection  of  a  Department  of  Foreign 
Affairs,  (soon  afterwards  changed  to  the  Department  of  State). 
A  few  days  afterwards  the  Department  of  War  was  created,  with 
"a  principal  oflScer,"  the  "Secretary  for  the  Department  of  War." 
Next  came  the  Treasury  Department,  with  "a  Secretary  of  the 
Treasury,  to  be  deemed  the  head  of  the  Department."  Follow- 
ing this  act  is  that  establishing  "the  Post  Office,"  with  "a  Post- 
master General,  to  be  subject  to  the  direction  of  the  President  of 
the  United  States  in  performing  the  duties  of  his  office,  and  in 
forming  contracts  for  the  transportation  of  mail."  Finally,  came 
the  act  providing  that  "there  shall  also  be  appointed  a  meet  per- 
son, learned  in  the  law,  to  act  as  Attorney  General  for  the  United 
States." 
Executive  Such  were  the  great  departments  of  administration,  with  which 

are  under"  ^    ^^^  business  of  tlie  Government  of  the  United  States  commenced. 
the  Presi-        Changes  in  detail  were  made  by  Congress,  or  by  order  of  the 
ent  s    irec-    pj-ggj^jgnt,  from  time  to  time,  by  the  addition  of  new  functions  to 

tion.  '  '      -' 

this  or  that  department,  by  change  in  the  distribution  of  their 


The   Powers  of  the   President  179 

respective  duties,  and  at  length,  by  the  creation  of  new  departments. 
But,  amid  all  these  successive  changes  in  detail,  the  original  theory 
of  departmental  administration  continued  unchanged,  namely, 
executive  departments,  with  heads  thereof  discharging  their  ad- 
ministrative duties  in  such  manner  as  the  President  should  direct, 
and  being  in  fact  the  executors  of  the  will  of  the  President.  All 
the  statutes  of  departmental  organization,  except  one,  expressly 
recognize  the  direction  of  the  President,  and  in  that  one,  the  In- 
terior, it  is  implied,  because  the  duties  assigned  to  it  are  not  new 
ones,  but  such  as  had  previously  been  exercised  by  other  depart- 
ments. It  could  not,  as  a  general  rule,  be  otherwise,  because 
in  the  President  is  the  executive  power  vested  by  the  Constitution, 
and  also  because  the  Constitution  commands  that  He  shall  take 
care  that  the  laws  be  faithfully  executed;  thus  making  him  not 
only  the  depository  of  the  executive  power,  but  the  responsible 
executive  minister  of  the  United  States. 

But,  if  the  direction  of  the  President  to  the  executive  depart-  Acts  to  be 
ments  be  assumed  generally,  or  at  least,  in  the  general  statutes  of  P  ^^^ 
organization,  may  there  not  still  be  cases  of  distinction  in  which.  President, 
by  the  Constitution  or  by  statute,  specific  things  must  be  done 
by  the  President  himself  or  by  Heads  of  Departments?  Such 
cases  do  undoubtedly  exist,  and  any  view  of  the  subject  which 
omits  to  consider  them,  must  be  partial,  defective,  imperfect.  We 
begin  with  examples  of  acts  performable  by  the  President,  as  pre- 
scribed by  the  Constitution.  Thus  it  may  be  assumed  that  he, 
the  man  discharging  the  presidential  office,  and  he  alone,  grants 
reprieves  and  pardons  for  offences  against  the  United  States,  not 
another  man,  the  Attorney  General  or  anybody  else,  by  delegation 
of  the  President.  So  he,  and  he  alone,  is  the  supreme  commander- 
in-chief  of  the  Army  and  Navy  of  the  United  States,  and  of  the 
militia  of  the  several  States,  when  called  into  the  actual  service  of 
the  United  States.  That  is  a  power  constitutionally  inherent  in 
the  person  of  the  President.  No  act  of  Congress,  no  act  even 
of  the  President  himself,  can,  by  constitutional  possibility,  authorize 
or  create  any  military  officer  not  subordinate  to  the  President. 


i8o 


American  Government  and   Politics 


So  he  appoints  and  removes  ambassadors  and  other  officers  of 
the  United  States,  in  the  cases  and  with  the  quahfications  indicated 
by  the  Constitution.  So  he  approves  or  chsapproves  of  bills 
which  have  passed  both  Houses  of  Congress :  that  is  a  personal  act 
of  the  President  like  the  vote  of  a  Senator  or  Representatives  in 
Congress,  not  capable  of  performance  by  a  Head  of  Department 
or  any  other  person. 

But  the  question,  whether  a  given  duty  is  to  be  the  immediate  deed 
of  the  President,  or  to  be  performed  by  delegation,  does  not  seem 
to  depend,  at  least  in  all  its  degrees,  upon  the  fact  of  its  being 
expressly  enumerated  in  the  Constitution;  for,  in  certain  stages 
of  the  negotiation  of  a  treaty,  anterior  to  and  including  its  signa- 
ture, he  delegates  full  powers  to  another  person.  But,  after  all, 
it  must  be  communicated  by  the  President  to  the  Senate,  and  it 
does  not  become  the  effective  law  of  the  land  until  there  is  exchange 
of  ratifications,  officially  made  and  proclaimed  by  the  President. 
At  the  same  time,  be  it  observed  that,  in  the  Constitution,  no  case 
occurs  of  the  communication  of  power  directly  to  any  Head  of 
Department,  except  in  the  respect  of  the  appointment  of  such 
inferior  officers  as  may  be  intrusted  to  them  by  act  of  Congress. 
We  shall  have  reason  to  conclude,  in  the  sequel,  that  even  this 
cannot  be  regarded  as  a  power  independent  of  that  of  the  Presi- 
dent. , 

On  an  examination  of  the  whole  body  of  the  statutes  of  the  United 
States,  it  will  be  found  that,  in  the  designation  of  executive  acts 
to  be  performed,  there  is  no  uniformity  of  language,  no  systematic 
style  of  legislation.  Sometimes  a  statute  says  the  President  shall 
perform  the  act,  —  sometimes  that  this  or  that  Secretary  shall 
perform  it,  —  without  there  being,  in  general,  any  constitutional 
or  legal  distinction  between  the  authority  of  the  respective  acts, 
all  of  them  being  of  things  which,  on  the  one  hand,  the  President 
may,  if  he  please,  delegate  to  a  Head  of  Department,  and  which, 
on  the  other  hand,  cannot  be  done  by  a  Head  of  Department 
without  direction  of  the  President. 

Take  now  the  converse  form  of  legislation,  that  common  or 


The  Powers  of  the  President  1 8 1 

most  ordinary  style,  in  which  an  executive  act  is,  by  law,  required    Department 
to  be  performed  by  a  given  Head  of  Department.     I  think  here   ^q\  ^^^. 
the  general  rule  to  be  as  already  stated,  that  the  Head  of  Depart-   against  the 
ment  is  subject  to  the  direction  of  the  President.     I  hold  that  no 
Head  of  Department  can  lawfully  perform  an  official  act  against 
the  will  of  the  President;    and  that  will  is  by  the  Constitution  to 
govern  the  performance  of  all  such  acts.     If  it  were  not  thus, 
Congress  might  by  statute  so  divide  and  transfer  the  executive 
power  as  utterly  to  subvert  the  Government,  and  to  change  it 
into  a  parliamentary  despotism,  like  that  of  Venice  or  Great  Brit- 
ain, with  a  nominal  executive  chief  utterly  powerless,  —  whether 
under  the  name  of  Doge  or  King,  or  President,  who  would  then  be 
of  little  account,  so  far  as  regards  the  question  of  the  maintenance 
of  the  Constitution.^ 

Without  enlarging  upon  this  branch  of  the  inquiry,  it  will  suffice 
to  say  that,  in  my  opinion,  all  the  cases  in  which  a  Head  of  Depart- 
ment performs  acts,  independent  of  the  President,  are  reducible 
to  two  classes,  namely :  first,  acts  purely  ministerial ;  and,  secondly, 
acts  in  which  the  thing  done  does  not  belong  to  the  office,  but  the 
title  of  the  office  is  employed  as  a  mere  designatio  personce. 

To  elucidate  my  thought  in  this  respect,  let  us  look  into  the  daily 
course  and  routine  of  administration. 

The  Secretary  of  State  is  constantly  receiving  communications   Ordinarj' 
from  the  public  ministers  and  consuls  of  the  United  States  abroad,     "'"^^  ° 

I  '    executive 

from  foreign  ministers  accredited  to  the  United  States,  and  from  heads. 
private  citizens  having  concerns  in  his  department,  and  he  is 
dispatching  letters,  instructions,  orders,  in  return,  to  all  parts  of 
the  world.  The  Secretary  of  the  Treasury  is  in  communication 
with  collectors,  assistant-treasurers,  disbursing  agents,  and  many 
other  officers,  as  also  with  private  individuals  in  all  the  multi- 
farious business  of  his  department.  The  Secretary  of  War  and 
the  Secretary  of  the  Navy  are  receiving  a[)i)lications  from,  and 
addressing  instructions  and  orders  to,  all  the  officers  of  the  .\rmy 
and  Navy,  and  contractors  and  others  persons  within  the  juris- 

*  For  an  opposite  view,  see  below,  p.  200. 


l82 


American  Government  and  Politics 


When  the 
President 
must  be 
consulted. 


Verbal 
directions 
by  the 
President. 


Written 
directions. 


diction  of  their  respective  departments.  The  Postmaster  General 
is  in  like  communication  with  the  host  of  deputies,  contractors, 
and  agents  engaged  in  or  affected  by  the  mail  service  of  the  United 
States.  Each  of  these  Heads  of  Departments  is  continually  pass- 
ing upon  applications  for  service  and  accounts  of  expenditure, 
appertaining  to  his  branch  of  the  business  of  the  Government. 

Now,  all  these  multifarious  acts  are  under  the  constitutional 
direction  of  the  President.  In  legal  theory,  they  are  his  acts. 
But  a  large  proportion  of  them  are  performed  by  his  general  di- 
rection, without  any  special  direction.  If  a  Secretary  doubt 
whether  he  has  any  general  direction  covering  a  given  question,  — 
if  the  question  be  new  in  principle  or  application,  and  he  doubts 
what  the  President  would  choose  to  have  done  in  the  premises,  — 
if  he  doubts,  in  his  own  conscience,  what  should  be  done  and 
therefore  needs  the  guidance  of  the  President,  —  if,  in  fine,  the 
act  be  one  of  grave  public  responsibility,  and  he  shrinks  from 
deciding  it  of  himself,  —  in  all  these  contingencies  he  will  consult 
the  President. 

On  such  consultation,  in  the  great  majority  of  cases,  the  Secre- 
tary will  take  and  act  upon  the  verbal  direction  of  the  President, 
because  the  object  of  the  consultation  is,  in  general,  to  ascertain 
the  President's  will,  or  at  most  to  determine,  by  conference  and 
comparison  of  thought,  what  the  public  interest  requires,  just  as 
in  the  last  relation  the  President  himself  consults  any  one  or  all 
of  the  members  of  the  Cabinet. 

But  the  case  may  and  often  does  happen,  in  which  the  Secretary 
desires,  or  the  President  chooses,  to  give  a  written  direction.  In 
this  contingency  the  responsibility  of  the  act  done  continues  to  be 
shared  in  common  by  the  President  and  the  Secretary;  but  a 
direct  and  more  individual  responsibility,  legal  and  moral,  is  as- 
sumed by  the  President.  Just  so  it  is  in  principle,  but  mth  in- 
version of  responsibility,  when  the  President,  in  regard  to  some 
line  of  public  policy  to  be  adopted  by  him,  or  some  general  or  su- 
perior direction  to  be  given,  demands  the  written  advice  of  the 
Hi^ads  of  Departments. 


The  Powers  of  the   President  183 

In  a  word,  while  there  is  a  general  solidarity  of  responsibility  The  ques- 
for  public  measures,  as  between  the  President  and  the  Heads  of  sponsibiUty. 
Department,  and  while  a  general  responsibility  of  direction  is 
attributable  to  the  President  and  of  execution  to  the  Heads  of 
Department,  yet  the  weight  of  historical  responsibility,  and  per- 
haps of  legal,  may  be  shifted  partially  from  one  to  another,  accord- 
ing as  the  determination  is  governed  or  evidenced  by  the  written 
direction  of  the  President  or  by  the  written  advice  of  the  Head  of 
Department. 

73.    The  President  as  National  Spokesman  in  Foreign  Affairs 

Early  in  the  history  of  our  republic,  Thomas  Jefferson  as  Secre- 
tary of  State  laid  down  in  the  following  letter  to  M.  Genet,  the 
diplomatic  representative  of  France,  the  proposition  that  the  Presi- 
dent was  to  be  regarded  as  the  sole  person  authorized  to  speak 
with  authority  for  the  United  States  on  the  conduct  of  foreign 
affairs. 

Sir,  —  In  my  letter  of  October  2,  I  took  the  liberty  of  noticing  The  will  of 
to  you  that  the  commission  of  consul  to  M.  Dannery  ought  to  have   expressed 
been  addressed  to  the  President  of  the  United  States;  he  being  the   through  the 
only  channel  of  communication  between  this  country  and  foreign 
nations,  it  is  from  him  alone  that  foreign  nations  or  their  agents 
are  to  learn  what  is  or  has  been  the  will  of  the  nation,  and  whatever 
he  communicates  as  such,  they  have  a  right,  and  are  bound  to 
consider  as  the  expression  of  the  nation,  and  no  foreign  agent  can 
be  allowed  to  question  it,  to  interpose  between  him  and  any  other 
branch  of  the  government,  under  the  pretext  of  either's  trans- 
gressing their  functions,  nor  to  make  himself  the  umpire  and  final 
judge  between  them. 

I  am,  therefore,  sir,  not  authorized  to  enter  into  any  discussions   The  Presi- 
with  you  on  the  meaning  of  our  constitution  in  any  part  of  it,  or   authority 
to  prove  to  you  that  it  has  ascribed  to  him  alone  the  admission  or  cannot  be 
interdiction  of  foreign  agents.     I  inform  you  of  the  fact  by  author-   '^^^^  "^"'^ 
ity  from  the  President.     I  had  observed  to  you  that  we  were  ])er- 
suaded  that  in  the  case  of  the  consul  Dannerv,  tlic  errour  in  the 


184  American   Government  and  Politics 

address  had  proceeded  from  no  intention  in  the  executive  coun- 
cil of  France  to  question  the  functions  of  the  President,  and 
therefore  no  difficulty  was  made  in  issuing  the  commission.  But 
in  your  letter  of  the  14th  instant,  you  personally  question  the  author- 
ity of  the  President  and  in  consequence  of  that  have  not  addressed 
the  commissions  of  Messrs.  Pennevert  and  Chervi,  making  a  point 
of  this  formality  on  your  part;  it  becomes  necessary  to  make  a 
point  of  it  on  ours  also;  and  I  am  therefore  charged  to  return  to 
you  those  commissions,  and  to  inform  you  that,  bound  to  enforce 
respect  to  the  order  of  things  estabUshed  by  our  constitution,  the 
President  will  issue  no  exequatur  to  any  consul  or  vice-consul, 
not  directed  to  him  in  the  usual  form,  after  the  party  from  whom 
it  comes  has  been  apprized  that  such  should  be  the  address. 
I  have  the  honour  to  be,  &c. 

Th.  Jefferson. 

74.    The  War  Powers  of  the  President 

There  is  an  old  saying  to  the  effect  that  in  times  of  war  the  laws 
are  silent,  and  from  the  nature  of  the  case  this  must  be  to  a  great 
extent  true,  even  in  the  most  democratic  governments.  The 
critical  problems  of  conducting  a  campaign  must  be  met  with  de- 
cision, promptness,  and  consistent  action  in  which  appropriate 
means  are  adapted  to  the  end  sought  —  the  achievement  of  vic- 
tory. Clearly  the  powers  of  the  President  as  chief  magistrate  and 
commander-in-chief  cannot  be  narrowly  laid  down  in  definite 
rules.  Accordingly,  there  will  always  be  differences  of  opinion  as 
to  the  validity  of  acts  of  the  President  under  his  military  authority, 
but  the  following  statement  by  President  Polk,  in  defense  of  his 
policy  of  levying  contributions  in  Mexico,  seems  to  be  a  fair  inter- 
pretation of  the  power  of  the  President  in  the  conduct  of  war. 

Constitu-  By  the  Constitution  the  right  to  "declare  war"  is  vested  in 

visimis^™        Congress,  and  by  the  same  instrument  it  is  provided  that  "the 

President  shall  be  Commander  in  Chief  of  the  Army  and  Navy 

of  the  United  States"  and  that  "he  shall  take  care  that  the  laws 

be  faithfully  executed." 


The  Powers  of  the   President  185 

When   Congress  have  exerted  their  power  by  declaring  war  The  Presi- 
against  a  foreign  nation,  it  is  the  duty  of  the  President  to  prosecute   trolled  by 
it.     The  Constitution  has  prescribed  no  particular  mode  in  which   the  law  of 
he  shall  perform  this  duty.     The  manner  of  conducting  the  war 
is  not  defined  by  the  Constitution.     The  term  war  used  in  that 
instrument  has  a  well-understood  meaning  among  nations.     That 
meaning  is  derived  from  the  laws  of  nations,  a  code  which  is  recog- 
nized by  all  civilized  powers  as  being  obligatory  in  a  state  of  war. 
The  power  is  derived  from  the  Constitution,  and  the  manner  of 
exercising  it  is  regulated  by  the  laws  of  nations. 

When  Congress  have  declared  war,  they  in  effect  make  it  the   K°^.  *^^ 

President 

duty  of  the  President  in  prosecuting  it,  by  land  and  sea,  to  resort  niay  con- 
to  all  the  modes  and  to  exercise  all  the  powers  and  rights  which  duct  war. 
other  nations  at  war  possess.  He  is  invested  with  the  same  power 
in  this  respect  as  if  he  were  personally  present  commanding  our 
fleets  by  sea  or  our  armies  by  land.  He  may  conduct  the  war  by 
issuing  orders  for  fighting  battles,  besieging  and  capturing  cities, 
conquering  and  holding  the  provinces  of  the  enemy,  or  by  captur- 
ing his  vessels  and  other  property  on  the  high  seas.  But  these  are 
not  the  only  modes  of  prosecuting  war  which  are  recognized  by 
the  laws  of  nations  and  to  which  he  is  authorized  to  resort.  The 
levy  of  contributions  on  the  enemy  is  a  right  of  war  well  established 
and  universally  acknowledged  among  nations,  and  one  which  every 
belligerent  possessing  the  ability  may  properly  exercise.  The 
most  approved  writers  on  public  law  admit  and  vindicate  this  right 
as  consonant  with  reason,  justice  and  humanity. 

Upon  the  declaration  of  war  against  Mexico  by  Congress  the   Congress 
United  States  were  entitled  to  all  the  rights  which  any  other  nation   prescribe 
at  war  would  have  possessed.     These  rights  could  only  be  de-   the  details 
manded  and  enforced  by  the  President,  whose  duty  it  was,  as  °  campaign, 
"  Commander  in  Chief  of  the  Army  and  Navy  of  the  United  States," 
to  execute  the  law  of  Congress  which  declared  the  war.     In  the 
act  declaring  war  Congress  provided  for  raising  men  and  money 
to  enable  the  President  "to  prosecute  it  to  a  speedy  and  successful 
termination."     Congress   prescribed   no  mode  of  conducting    it. 


i86 


American  Government  and  Politics 


Many  war 
powers  not 
defined  in 
the  Con- 
stitution. 


Large  war 
powers 
necessary 
to  success. 


but  left  the  President  to  prosecute  it  according  to  the  laws  of 
nations  as  his  guide.  Indeed,  it  would  have  been  impracticable 
for  Congress  to  have  provided  for  all  the  details  of  a  campaign.  .  .  . 

The  right  to  blockade  the  ports  and  coasts  of  the  enemy  in  war 
is  no  more  provided  for  or  prescribed  by  the  Constitution  than  the 
right  to  levy  and  collect  contributions  from  him  in  the  form  of 
duties  or  otherwise,  and  yet  it  has  not  been  questioned  that  the 
President  had  the  power  after  war  had  been  declared  by  Congress 
to  order  our  Navy  to  blockade  the  ports  and  coasts  of  Mexico. 
The  right  in  both  cases  exists  under  the  laws  of  nations.  If  the 
President  cannot  order  military  contributions  to  be  collected 
without  an  act  of  Congress,  for  the  same  reason  he  cannot  order  a 
blockade;  nor  can  he  direct  the  enemy's  vessels  to  be  captured 
on  the  high  seas ;  nor  can  he  order  our  military  and  naval  officers 
to  invade  the  enemy's  country,  conquer,  hold,  and  subject  to  our 
miKtary  government  his  cities  and  provinces ;  nor  can  he  give  to  our 
military  and  naval  commanders  orders  to  perform  many  other  acts 
essential  to  success  in  war. 

If  when  the  City  of  Mexico  was  captured  the  commander  of 
our  forces  had  found  in  the  Mexican  treasury  public  money  which 
the  enemy  had  provided  to  support  his  army,  can  it  be  doubted 
that  he  possessed  the  right  to  seize  and  appropriate  it  for  the  use 
of  our  own  Army?  If  the  money  captured  from  the  enemy  could 
have  been  thus  lawfully  seized  and  appropriated,  it  would  have 
been  by  virtue  of  the  laws  of  war,  recognized  by  all  civilized 
nations;  and  by  the  same  authority  the  sources  of  revenue  and  of 
supply  of  the  enemy  may  be  cut  off  from  him,  whereby  he  may  be 
weakened  and  crippled  in  his  means  of  continuing  or  waging  the 
war.  If  the  commanders  of  our  forces,  while  acting  under  the 
orders  of  the  President,  in  the  heart  of  the  enemy's  countn'-  and 
surrounded  by  a  hostile  population,  possess  none  of  these  essential 
and  indispensable  powers  of  war,  but  must  halt  the  Army  at  every 
step  of  its  progress  and  wait  for  an  act  of  Congress  to  be  passed 
to  authorize  them  to  do  that  which  every  other  nation  has  the  right 
to  do  by  virtue  of  the  laws  of  nations,  then,  indeed,  is  the  Govern- 


The  Powers  of  the   President  187 

ment  of  the  United  States  in  a  condition  of  imbecility  and  weakness, 
which  must  in  all  future  time  render  it  impossible  to  prosecute  a 
foreign  war  in  an  enemy's  country  successfully  or  to  vindicate  the 
national  rights  and  the  national  honor  by  war. 

75.    The  Political  Implications  of  the  Veto  Power* 

According  to  the  theory  of  the  Constitution  as  expounded    by   The  original 
Hamilton,   it  was  the  intention  of  the  Framers    that   the   veto   Purpose 
should  be  used  to  protect  the  executive  from  encroachment  on  his     Q^gj.. 
powers  by  the  legislature,  and  also  to  prevent  hasty  and  improper 
legislation.     In  actual  practice,  however,  the  veto  has  often  been 
used  for  purely  political  purposes  to  further  the  policies  of  the 
executive.     The  methods  employed  by  President  Jackson  are  de- 
scribed and  criticised  by  Mr.  Webster  in  the  following  speech,  in 
which  he  calls  attention  not  only  to  the  regular  veto,  but  also  to 
another  kind  of  negative  in  form  of  a  flat  refusal  to  execute  laws 
duly  passed.^ 

Mr.  President,  among  the  novelties  introduced  into  the  govern-  The 
ment  by  the  present  administration  is  the  frequent  use  of  the  Pres-  ^^  ,  pj-ggj. 
ident's  negative  on  acts  of  Congress.  Under  former  Presidents,  dents. 
this  power  has  been  deemed  an  extraordinary  one,  to  be  exercised 
only  in  peculiar  and  marked  cases.  It  was  vested  in  the  President, 
doubtless,  as  a  guard  against  hasty  or  inconsiderate  legislation, 
and  against  any  act,  inadvertently  passed,  which  might  seem  to 
encroach  on  the  just  authority  of  other  branches  of  the  govern- 
ment. I  do  not  recollect  that,  by  all  (General  Jackson's  predeces- 
sors, this  power  was  exercised  more  tlian  four  or  five  times.  Not 
having  recurred  to  the  journals,  I  cannot,  of  course,  be  sure  that 
I  am  numerically  accurate  in  this  ])articular;  but  such  is  my  be- 
lief. I  recollect  no  instance  in  the  time  of  Mr.  John  Adams,  Mr. 
Jefferson,  or  Mr.  John  Quincy  Adams.  The  only  cases  which 
occur  to  me  are  two  in  (leneral  Washington's  administration,  two 
in  Mr.  Madison's,  and  one  in  Mr.  Monroe's.  There  may  be  some 
others;    but  we  all  know  that  it  is  a  ])Ovver  which  has  been  very 

'  For  the  clause  conferring  the  veto  power,  see  below,  p.  217. 


1 88  American   Government  and  Politics 

sparingly  and  reluctantly  used  from  the  beginning  of  the  govern- 
ment.    The  cases,  Sir,  to  which  I  have  now  referred,  were  cases 
in  which  the  President  returned  the  bill  with  objections. 
The  silent  The  silent  veto  is,  I  believe,  the  exclusive  adoption  of  the  present 

administration.  I  think,  indeed,  that  some  years  ago,  a  bill,  by 
inadvertence  or  accident,  failed  to  receive  the  President's  signa- 
ture, and  so  did  not  become  a  law.  But  I  am  not  aware  of  any 
instance,  before  the  present  administration,  in  which  the  President 
has,  by  design,  omitted  to  sign  a  bill,  and  yet  has  not  returned  it  to 
Congress.  But  since  that  administration  came  into  power,  the 
veto,  in  both  kinds,  has  been  repeatedly  applied.  In  the  case  of 
the  Maysville  Road,  the  Montgomery  Road,  and  the  bank,  we  have 
had  the  veto,  with  reasons.  In  an  internal  improvement  bill  of 
a  former  session,  in  a  similar  bill  at  the  late  session,  and  in  the 
State  interest  bill,  we  have  had  the  silent  veto,  or  refusal  without 
reasons. 
How  the  Now,  Sir,  it  is  to  be  considered,  that  the  President  has  the  power 

k  used^  °  °^  recommending  measures  to  Congress.  Through  his  friends, 
he  may  and  does'oppose,  also,  any  legislative  movement  which  he 
does  not  approve.  If,  in  addition  to  this,  he  may  >exercise  a  silent 
veto,  at  his  pleasure,  on  all  the  bills  presented  to  him  during  the 
last  ten  days  of  the  session;  if  he  may  refuse  assent  to  them  all, 
without  being  called  upon  to  assign  any  reasons  whatever,  —  it 
will  certainly  be  a  great  practical  augmentation  of  his  power. 
Any  one,  who  looks  at  a  volume  of  the  statutes,  will  see  that  a  great 
portion  of  the  laws  are  actually  passed  within  the  last  ten  days 
of  each  session.  If  the  President  is  at  liberty  to  negative  any  or 
all  of  these  laws,  at  pleasure,  or  rather,  to  refuse  to  render  the  bills 
laws  by  approving  them,  and  still  may  neglect  to  return  them  to 
Congress  for  renewed  action,  he  will  hold  a  very  important  control 
over  the  legislation  of  this  country.  The  day  of  adjournment  is 
usually  fixed  some  weeks  in  advance.  This  being  fixed,  a  little 
activity  and  perseverance  may  easily,  in  most  cases,  and  perhaps 
in  all,  where  no  alarm  has  been  excited,  postpone  important  pend- 
ing measures  to   a  period  within  ten  days  of   the  close  of   the 


The   Powers  of  the   President  189 

session;^  and  this  operation  subjects  all  such  measures  to  the 
discretion  of  the  President,  who  may  sign  the  bills  or  not,  without 
being  obliged  to  state  his  reasons  publicly. 

This  practical  innovation  on  the   mode  of  administering  the  The 
government,  so  much  at  variance  with  its  general  principles,  and '  makes  the 
so  capable  of  defeating  the  most  useful  acts,  deserves  public  con-   President 
sideration.     Its  tendency  is  to  disturb  the  harmony  which  ought  ^^P""^™^- 
always  to  exist  between  Congress  and  the  executive,  and  to  turn 
that  which  the  Constitution  intended  only  as  an  extraordinary 
remedy  for  extraordinary  cases  into  a  common  means  of  making 
executive  discretion  paramount  to  the  discretion  of  Congress,  in 
the  enactment  of  laws. 

Mr.  President,  the  executive  has  not  only  used  these  unaccustomed  The 
means  to  prevent  the  passage  of  laws,  but  it  has  also  refused  to  refuses  to 
enforce  the  execution  of  laws  actually  passed.  An  eminent  instance  execute  laws 
of  this  is  found  in  the  course  adopted  relative  to  the  Indian  inter- 
course law  of  1802.  Upon  being  applied  to,  in  behalf  of  the  Mis- 
sionaries, to  execute  that  law,  for  their  relief  and  protection,  the 
President  replied,  that,  the  State  of  Georgia  having  extended  her 
laws  over  the  Indian  territory,  the  laws  of  Congress  had  thereby 
been  superseded.  This  is  the  substance  of  his  answer,  as  com- 
municated through  the  Secretary  of  War.  He  holds,  then,  that 
the  law  of  the  State  is  paramount  to  the  law  of  Congress.  The 
Supreme  Court  has  adjudged  this  act  of  Georgia  to  be  void,  as 
being  repugnant  to  a  constitutional  law  of  the  United  States.  But 
the  President  pays  no  more  regard  to  this  decision  than  to  the  act 
of  Congress  itself.  The  missionaries  remain  in  prison,  held  there 
by  a  condemnation  under  a  law  of  a  State  which  the  supreme 
judicial  tribunal  had  pronounced  to  be  null  and  void.  The  Supreme 
Court  have  decided  that  the  act  of  Congress  is  constitutional;  that 
it  is  a  binding  statute;  that  it  has  the  same  force  as  other  laws, 
and  is  as  much  entitled  to  be  obeyed  and  executed  as  other  laws. 
The  President,  on  the  contrary,  declares  that  the  law  of  Congress 

'  According  to  the  Constitution  any  bill  not  sif^ned  by  the  President  fails  to 
become  a  law  if  Congress  adjourns  within  ten  days  of  its  passage. 


1 9© 


American  Government  and  Politics 


The  Presi- 
dent decides 
how  far  a 
law  is  to  be 
enforced. 

Jackson's 
theory  of 
his  oath  to 
support 
the  Consti- 
tution. 


The  logical 
effect  of   this 
theory. 


has  been  superseded  by  the  law  of  the  State,  and  therefore  he  will 
not  carry  its  provisions  into  effect.  Now  we  know,  Sir,  that  the 
Constitution  of  the  United  States  declares,  that  that  Constitution, 
and  all  acts  of  Congress  passed  in  pursuance  of  it,  shall  be  the  su- 
preme law  of  the  land,  anything  in  any  State  law  to  the  contrary 
notwithstanding.  This  would  seem  to  be  a  plain  case,  then,  in 
which  the  law  should  be  executed.  It  has  been  solemnly  decided 
to  be  in  actual  force,  by  the  highest  judicial  authority;  its  execution 
is  demanded  for  the  relief  of  free  citizens,  now  suffering  the  pains 
of  unjust  and  unlawful  imprisonment;  yet  the  President  refuses 
to  execute  it. 

In  the  case  of  the  Chicago  Road,  some  sessions  ago,  the  President 
approved  the  bill,  but  accompanied  his  approval  by  a  message, 
sapng  how  far  he  deemed  it  a  proper  law,  and  how  far,  therefore, 
it  ought  to  be  carried  into  execution. 

In  the  case  of  the  harbor  bill  of  the  late  session,  being  applied 
to  by  a  member  of  Congress  for  directions  for  carrj'ing  parts  of  the 
law  into  effect,  he  declined  giving  them,  and  made  a  distinction 
between  such  parts  of  the  law  as  he  should  cause  to  be  executed, 
and  such  as  he  should  not;  and  his  right  to  make  this  distinction 
has  been  openly  maintained  by  those  who  habitually  defend  his 
measures.  Indeed,  Sir,  these,  and  other  instances  of  liberties 
taken  with  plain  statute  laws,  flow  naturally  from  the  principles 
expressly  avowed  by  the  President,  under  his  own  hand.  In  that 
important  document,  Sir,  upon  which  it  seems  to  be  his  fate  to 
stand  or  fall  before  the  American  people,  the  veto  message,  he 
holds  the  following  language:  "Each  public  ofl&cer  who  takes 
an  oath  to  support  the  Constitution,  swears  that  he  will  support  it 
as  he  understands  it,  and  not  as  it  is  understood  by  others." 

Mr.  President,  the  general  adoption  of  the  sentiments  expressed 
in  this  sentence  would  dissolve  our  government.  It  would  raise 
every  man's  private  opinions  into  a  standard  for  his  own  conduct; 
and  there  certainly  is,  there  can  be,  no  government,  where  every 
man  is  to  judge  for  himself  of  his  own  rights  and  his  own  obliga- 
tions.    Where  every  one  is  his  own  arbiter,  force,  and  not  law,  is 


The   Powers  of  the  President  191 

the  governing  power.  He  who  may  judge  for  himself,  and  decide 
for  himself,  must  execute  his  own  decisions;  and  this  is  the  law 
of  force.  I  confess,  Sir,  it  strikes  me  with  astonishment,  that  so  wild, 
so  disorganizing  a  sentiment  should  be  uttered  by  a  President  of 
the  United  States.  I  should  think  that  it  must  have  escaped  from 
its  author  through  want  of  reflection,  or  from  the  habit  of  little 
reflection  on  such  subjects,  if  I  could  suppose  it  possible,  that  on  a 
question  exciting  so  much  public  attention,  and  of  so  much  national 
importance,  any  such  extraordinary  doctrine  could  find  its  way, 
through  inadvertence,  into  a  formal  and  solemn  public  act..  Stand- 
ing as  it  does,  it  affirms  a  proposition  which  would  effectually  repeal 
all  constitutional  and  all  legal  obligations.  The  Constitution  de- 
clares, that  every  public  officer,  in  the  State  governments  as  well  as 
in  the  general  government,  shall  take  an  oath  to  support  the  Con- 
stitution of  the  United  States.  This  is  all.  Would  it  not  have 
cast  an  air  of  ridicule  on  the  whole  provision,  if  the  Constitution  had 
gone  on  to  add  the  words,  "as  he  understands  it"?  What  would 
come  nearer  to  a  solemn  farce,  than  to  bind  a  man  by  oath,  and 
still  leave  him  to  be  his  own  interpreter  of  his  own  obligations? 

Sir,  those  who  are  to  execute  the  laws  have  no  more  a  license  to  The 
construe  them  for  themselves,  than  those  whose  only  duty  is  to   bound ^bv 
obey  them.     Public  officers  are  bound  to  support  the  Constitu-   the  Con- 
tion ;  private   citizens  are   bound    to  obey   it ;   and   there   is   no   ^''*J^^'°"  ^^ 
more    indulgence   granted    to    the  public    officer  to  support  the   lively  inter 
Constitution  only  as  he  understands  it,  than  to  a  private  citizen  to   P""*^*^^'*- 
obey  it  only  as  he  understands  it;  and  what  is  true  of  the  Constitu- 
tion, in  this  respect,  is  equally  true  of  any  law.     Laws  are  to  be 
executed,  and  to  be  obeyed,  not  as  individuals  may  interpret  theipi 
but  according  to  public  authoritative  interj^retation  and  adjudication. 
The  sentiment  of  the  message  would  abrogate  the  obligation  of 
the  whole  criminal  code.     If  every  man  is  to  judge  of  the  Constitu- 
tion and  the  laws  for  himself,  if  he  is  to  obey  and  support  them 
only  as  he  may  say  he  understands  them,  a  revolution,  I  think, 
would  take  place  in  the  administration  of  justice ;   and  discussions 
about  the  law  of  treason,  murder,  and  arson  should  be  addressed, 


192 


American   Government  and  Politics 


not  to  the  judicial  bench,  but  to  those  who  might  stand  charged 
with  such  offences.  The  object  of  discussion  should  be,  if  we  run 
out  this  notion  to  its  natural  extent,  to  enlighten  the  culprit  him- 
self how  he  ought  to  understand  the  law. 


76.    The  Presidential  Message 

The  Constitution  imposes  on  the  President  the  duty  of  giving 
to  Congress  from  time  to  time  information  on  the  state  of  the  Union, 
and  also  of  recommending  to  its  consideration  such  measures 
as  he  may  think  necessary  and  expedient.  It  does  not  prescribe 
whether  this  shall  be  done  in  person  or  by  written  communications. 
The  early  practice  and  the  origin  of  the  present  custom  are  thus 
described  by  Senator  Benton. 

Under  the  first  two  of  our  Presidents,  Washington,  and  the  first 
Mr.  Adams,  the  course  of  the  British  Parliament  was  followed  in 
answering  the  address  of  the  President,  as  the  course  of  the 
sovereign  was  followed  in  delivering  it.  The  Sovereign  delivered 
his  address  in  person  to  the  two  assembled  Houses,  and  each  an- 
swered it:  our  two  first  Presidents  did  the  same,  and  the  Houses 
answered.  The  purport  of  the  answer  was  always  to  express  a 
concurrence,  or  non-concurrence  with  the  general  policy  of  the 
government  as  thus  authentically  exposed;  and  the  privilege  of 
answering  the  address  laid  open  the  policy  of  the  government  to  the 
fullest  discussion.  The  effect  of  the  practice  was  to  lay  open  the 
state  of  the  country,  and  the  public  policy,  to  the  fullest  discussion ; 
and  in  the  character  of  the  answer  to  decide  the  question  of  accord 
or  disaccord  —  of  support  or  opposition  —  between  the  representa- 
tive and  the  executive  branches  of  the  government. 

The  change  from  the  address  delivered  in  person,  with  its  an- 
swer, to  the  message  sent  by  the  private  secretary,  and  no  answer, 
was  introduced  by  Mr.  Jefferson,  and  considered  a  reform;  but 
it  was  questioned  at  the  time,  whether  any  good  would  come  of  it, 
and  whether  that  would  not  be  done  irregularly,  in  the  course  of 
the  debates,  which  otherwise  would  have  been  done  regularly  in 
the  discussion  of  the  address.     The  administration  policy  would 


The  Powers  of  the  President  193 

be  sure  to  be  attacked,  and  irregularly,  in  the  course  of  business, 
if  the  spirit  of  opposition  should  not  be  allowed  full  indulgence 
in  a  general  and  regular  discussion.  The  attacks  would  come, 
and  many  of  Mr.  Jefferson's  friends  thought  it  better  they  should 
come  at  once,  and  occupy  the  first  week  or  two  of  the  session,  than 
to  be  scattered  through  the  whole  session  and  mixed  up  with  all  its 
business.  But  the  change  was  made,  and  has  stood,  and  now  any 
bill  or  motion  is  laid  hold  of,  to  hang  a  speech  upon,  against  the 
measures  or  policy  of  an  administration. 

In  the  following  letter.  President  Jefferson  laid  before  Congress 
the  reasons  which  led  him  to  abandon  the  custom  of  delivering  the 
message  in  person :  — 

December  8,  1801. 
The  Honorable  the  President  of  the  Senate: 

Sir:  The  circumstances  under  which  we  find  ourselves  at 
this  place  rendering  inconvenient  the  mode  heretofore  practised 
of  making  by  personal  address  the  first  communications  between 
the  legislative  and  executive  branches,  I  have  adopted  that  by 
message,  as  used  on  all  subsequent  occasions  through  the  session. 
In  doing  this  I  have  had  principal  regard  to  the  convenience  of 
the  Legislature,  to  the  economy  of  their  time,  to  their  relief  from 
the  embarrassment  of  immediate  answers  on  subjects  not  yet  fully 
before  them,  and  to  the  benefits  thence  resulting  to  the  public 
affairs.  Trusting  that  a  procedure  founded  on  these  motives  will 
meet  their  approbation,  I  beg  leave  through  you,  sir,  to  communi- 
cate the  inclosed  message,  with  the  documents  accompanying  it, 
to  the  honorable  the  Senate,  and  pray  you  to  accept  for  yourself 
and  them  the  homage  of  my  high  respect  and  consideration. 

Th:  Jefferson. 

77,    Executive  Influence  on  Congressional  Legislation 

Through  his  power  to  send  messages  and  veto  laws,  the  Presi- 
dent has  the  constitutional  right  to  influence  the  course  of  legisla- 
tion in  Congress.     But  he  may  bring  pressure  to  bear  in  many  other 
ways.     He  may  use  the  message  as  an  instrument  to  rouse  public 
o 


194 


American   Government  and  Politics 


opinion ;  he  may  hold  conferences  with  the  directing  party  leaders 
in  Congress;  he  may  take  private  members  into  consultation.  To 
some  this  extra-constitutional  influence  of  the  President  seems  en- 
tirely warranted  by  sound  political  practice,  for  it  brings  those  who 
have  to  execute  the  laws  in  touch  with  those  who  make  them, 
and,  furthermore,  it  enables  the  President  as  representative  of  the 
whole  nation  to  exercise  his  proper  influence  in  the  management 
of  the  nation's  business.  To  others,  however,  this  appears  to  be 
a  wholly  objectionable  practice.  Both  sides  of  the  case  are  thus 
stated  in  a  recent  debate  in  Congress :  — 

Mr.  Dolliver.  —  I  am  not  one  of  those  who  have  been  irri- 
tated by  the  interest  which  the  President  of  the  United  States  has 
taken  in  this  controversy.^  His  interest  has  been  upon  the  broadest 
and  highest  national  ground.  He  has  stated  his  views  and  con- 
victions to  the  American  people  in  every  section  of  the  country, 
and  not  one  line  can  be  attributed  to  him  having  in  it  the  trace 
of  a  partisan  outlook  upon  this  great  national  question.  There- 
fore whatever  interest  he  has  taken  in  it  can  certainly  not  be  at- 
tributed to  a  partisan  design  of  any  kind  or  character. 

I  have  been  familiar  for  a  good  many  years  with  the  attitude 
of  the  executive  department  of  the  Government  toward  the  work 
of  Congress.  There  is  a  member  of  the  Senate  now  who,  if  he 
were  disposed  to  give  his  experience,  would  be  able  to  verify  what 
I  say,  that  it  has  been  for  many  years  the  no  uncommon  practice 
for  the  Congress  of  the  United  States  to  take  counsel  with  the 
executive  departments  in  perfecting  great  acts  of  national  leg- 
islation. There  are  at  least  live  acts  of  legislation,  all  of  them 
referring  to  this  and  similar  questions,  that  were  put  through  both 
Houses  of  Congress  in  the  last  five  years  practically  without 
change,  as  they  came  from  the  office  of  the  Attorney- General  of 
the  United  States. 

In  the  present  controversy  the  Attorney-General  has  certainly 
had  the  invitation  of  the  legislative  branch  of  the  Government 
to  take  an  interest  in  the  matter.  Among  the  very  first  things 
the  Committee  on  Interstate  Commerce  did  was  to  invite  him  to 

'  Over  the  regulation  of  railway  rates. 


The  Powers  of  the  President  195 

give  his  opinion  in  writing  to  the  Committee  explaining  to  us  our 
powers  and  making  what  suggestions  he  thought  desirable  in  re- 
lation to  this  legislation.  It  is  a  difficult,  a  complex,  almost  im- 
penetrable subject  with  which  we  have  been  called  upon  to  deal, 
and  I  do  not  propose  to  be  disparaged  nor  to  allow  anybody  else 
to  be  disparaged  by  a  sneering  suggestion  that  we  have  consulted 
the  Attorney- General  or  even  the  President  of  the  United  States. 
I  count  it  just  as  respectable  and  just  as  perfectly  in  line  with  my 
public  duty  to  take  counsel  with  the  President  of  the  United  States 
on  these  questions  as  for  my  colleagues  and  for  others  to  hold 
sweet  counsel  with  the  presidents  of  railroad  corporations.  .  .  . 

Mr.  Bailey.  —  Mr.   President,   I   belong  to  that  very  small   Congress 
class  of  Senators  and  Representatives  who  do  not  believe  that  it  is   ^^^  influenced 
proper  for  them  to  be  influenced  in  the  performance  of  their  leg-   by  views 
islative  duties  by  the  views  of  the  executive  department  and  it   president 
tias  never  been  my  practice  since  I  had  the  honor  to  occupy  a  seat 
in  Congress  to  confer  with  any  President,  either  of  my  own  or  of 
the  opposition  party,  in  respect  to  any  legislation. 

The  only  exception  I  ever  made  —  and  that  more  apparent  An  excep- 
than  real  —  was  in  the  case  of  the  lamented  and  martyred  '°'^" 
McKinley,  whose  invitation  I  accepted  to  confer  with  him  in  the 
hope  that  we  might  find  a  way  to  avert  the  war  with  Spain.  Upon 
a  question  like  that,  which  was  not  legislative,  I  felt  that  any 
Member  of  Congress  might  properly  confer  with  the  Executive 
of  the  Republic.  But,  sir,  I  have  so  often  seen  —  and  this  applies 
not  only  to  the  present  President  of  the  United  States,  but  to  his 
predecessors  in  that  great  office  —  I  have  so  often  seen  the  judg- 
ment of  Congress  overruled  or  controlled  by  the  executive  influ- 
ence that  early  in  my  service  in  the  other  House  I  resolved  that  it 
should  never  prevail  with  me. 

I  remember  when  a  mere  school  boy  reading  of  a  great  Vir-   The 
ginia  Democrat  being  invited  to  the  White  House  by  a  President,   0^^,30^^°" 
of  his  own  party  and  chosen  from  his  own  State,  to  confer  upon 
an  important  question  pending  in  the  Congress,  and  I  remember 


196 


American  Government  and  Politics 


how  my  youthful  blood  was  made  to  run  faster  when  I  read  how 
that  great  Virginia  Democrat  said:  "Mr.  President,  the  Consti- 
tution of  the  United  States  has  separated  the  executive  and  legis- 
lative departments  of  this  Government,  and,  by  the  help  of  God, 
I  intend  to  keep  them  separate."  I  adopted  that  as  my  creed  and 
I  have  lived  up  to  it  from  that  day  to  this. 


Transmis- 
sion of  a 
bill  to 
Congress. 


78.    How  Executive  Departtnents  May  Draft  Bills 

While  the  initiation  of  legislation  is  theoretically  left  to  Con- 
gress, the  President  may  recommend  such  measures  as  he  sees  fit. 
These  measures  need  not  be  limited  to  mere  general  statements; 
they  often  take  the  form  of  completed  bills  all  ready  for  passage, 
which  are  sometimes  adopted  by  Congress  without  alteration.  This 
message  of  President  Cleveland  illustrates  the  practice. 

To  the  Senate  and  House  of  Representatives: 

I  transmit  herewith  a  communication  of  the  15th  instant  from 
the  Secretary  of  the  Interior,  submitting,  with  accompanying 
papers  on  the  subject,  a  draught  of  a  bill  to  amend  section  5388 
of  the  Revised  Statutes  of  the  United  States  relating  to  timber 
depredations  upon  lands  reserved  or  purchased  for  military, 
Indian,  or  other  purposes,    &c. 

This  is  an  important  subject,  and  is  commended  to  the  early 
attention  of  Congress. 

Grover  Cleveland. 
Executive  Mansion,  December  21,  1885. 


CHAPTER   XI 

THE   NATIONAL   ADMINISTRATION 

79.    The  President's  Power  of  Removal  * 

While  giving  the  President  power  to  appoint  officers  by  and 
with  the  advice  and  consent  of  the  Senate,  the  Constitution  makes 
no  express  provision  as  to  how  undesirable  officers  should  be 
removed.  By  practical  experience,  however,  it  has  been  found  that 
no  executive  can  assume  responsibility  for  an  administration  unless 
he  can  keep  the  subordinate  officials  up  to  a  high  standard  of 
efficiency  through  the  disciplinary  power  of  removal.  That  this 
power  is  possessed  by  the  President  under  the  Constitution  is  the 
theme  of  the  following  decision  by  the  Supreme  Court. 

The  facts  as  they  appear  in  the  findings  of  the  Court  of  Claims  The  facts  in 
are  that  the  appellant  was  nominated  on  July  17,  1890,  to  be  one 
of  the  general  appraisers  of  merchandise  under  the  act  of  June  10, 
1890,  chapter  407,  26  Stat.  131,  and  that  nomination  was  con- 
sented to  on  the  following  day  by  the  Senate,  and  the  appellant  was 
thereupon  commissioned  to  be  such  general  appraiser  of  merchan- 
dise. He  accepted  that  office  and  took  the  oath  required  on  July 
24,  1890,  and  remained  in  such  office  and  was  paid  the  salary 
attaching  thereto  up  to  May  15,  1899.  On  May  3  of  that  year  he 
received  the  following  communication  from  the  President: 

Executive  Mansion, 
Washington,  D.C,  May  3,  1899. 
Sir:   You  are  hereby  removed  from  the  oflicc  of  general  appraiser  of 
merchandise,  to  take  effect  upon  the  appointment  and  qualification  of 
your  successor. 

William  McKinley. 
197 


198 


American   Government  and    Politics 


The  appellant  never  resigned  his  office  nor  acquiesced  in  any  at- 
tempted removal  therefrom,  and  he  was  never  notified  or  informed 
of  any  charges  made  against  him,  either  of  inefficiency,  neglect  of 
duty  or  malfeasance  in  office,  and  he  knows  of  no  cause  for  his 
removal  from  the  office  having  been  ascertained  or  assigned  by 
the  President. 

Mr.  Justice  Peckham,  after  making  the  foregoing  statement 
delivered  the  opinion  of  the  court. 

The  office  of  general  appraiser  of  merchandise  was  created  by 
the  twelfth  section  of  the  act  of  Congress  approved  June  10,  1S90. 
The  material  portion  of  that  section  reads  as  follows: 


Sec.  12.  That  there  shall  be  appointed  by  the  President  by  and  with 
the  advice  and  consent  of  the  Senate,  nine  general  appraisers  of  mer- 
chandise, .  .  .  They  shall  not  be  engaged  in  any  other  business,  avoca- 
tion or  employment,  and  may  be  removed  from  office  at  any  time  by  the 
President  for  inefficiency,  neglect  of  duty,  or  malfeasance  in  office. 


There  is  of  course  no  doubt  of  the  power  of  Congress  to  create 
such  an  office  as  is  provided  for  in  the  above  section.  Under  the 
provision  that  the  officer  might  be  removed  from  office  at  any  time 
for  inefficiency,  neglect  of  duty,  or  malfeasance  in  oflice,  we  are  of 
opinion  that  if  the  removal  is  sought  to  be  made  for  those  causes, 
or  either  of  them,  the  officer  is  entitled  to  notice  and  a  hearing, 
Reagan  v.  United  States,  1S2  U.  S.  419,  425.  It  must  be  presumed 
that  the  President  did  not  make  the  removal  for  any  cause  assigned 
in  the  statute,  because  there  was  given  to  the  officer  no  notice  or 
opportunity  to  defend.  The  question  then  arises,  can  the  Presi- 
dent exercise  the  power  of  removal  for  any  other  causes  than  those 
mentioned  in  the  statute;  in  other  words,  is  he  restricted  to  a  re- 
moval for  those  causes  alone,  or  can  he  exercise  his  general  power 
of  removal  without  such  restriction? 

The  appellant  contends  that  because  the  statute  specified  cer- 
tain causes  for  which  the  officer  might  be  removed,  it  thereby 
imy)liedly  excluded  and  denied  the  right  to  remove  for  any  other 
cause,  and  that  the  President  was  therefore  by  the  statute  pro- 


The  National  Administration  199 

hibited  from  any  removal  except  for  the  causes,  or  some  of  them, 
therein  defined.  The  maxim,  expressio  imius  est  exclusio  alterius, 
is  used  as  an  illustration  of  the  principle  upon  which  the  conten- 
tion is  founded.  We  are  of  opinion  that  as  thus  used  the  maxim 
does  not  justify  the  contention  of  the  appellant.  We  regard  it  as 
inapplicable  to  the  facts  herein.  The  right  of  removal  v^ould  ex- 
ist if  the  statute  had  not  contained  a  word  upon  that  subject.  It 
does  not  exist  by  virtue  of  the  grant,  but  it  inheres  in  the  right  to 
appoint,  unless  limited  by  the  Constitution  or  statute.  It  requires 
plain  language  to  take  it  away.  Did  Congress  by  the  use  of  lan- 
guage providing  for  removal  for  certain  causes  thereby  provide  that 
the  right  could  only  be  exercised  in  the  specific  causes?  If  so,  see 
what  a  difference  in  the  tenure  of  office  is  effected  as  to  this  office, 
from  that  existing  generally  in  this  country.  The  tenure  of  the 
judicial  officers  of  the  United  States  is  provided  for  by  the  Consti- 
tution but  with  that  exception  no  civil  officer  has  ever  held  office 
by  a  life  tenure  since  the  foundation  of  the  government. 

To  construe  the  statute  as  contended  for  by  the  appellant  is  to   The  uniform 
give  an  appraiser  of  merchandise  the  right  to  hold  that  office  during  ^^^^  ^f 
his  life  or  until  he  shall  be  found  guilty  of  some  act  specified  in  the   removal, 
statute.     If  this  be  true,  a  complete  revolution  in  the  general  tenure 
of  oflfice  is  effected,  by  implication,  with  regard  to  this  particular 
oflfice.     We  think  it  quite  inadmissible  to  attribute  an  intention  on 
the  part  of  Congress  to  make  such  an  extraordinary  change  in  the 
usual  rule  governing  the  tenure  of  office  and  one  which  is  to  be 
applied  to  this  particular  office  only,  without  stating  such  intention 
in  plain  and  explicit  language,  instead  of  leaving  it  to  be  implied 
from  doubtful  inferences.     We  can  see  no  reason  for  such  action 
by  Congress  with  reference  to  this  office  or  the  duties  connected 
with  it. 

In  making  removals  from  office  it  must  be  assumed  that  the  The 

...  ,  .  .       .         ,     ,  ,        President 

President  acts  with  reference  to  his  constitutional  duty  to  take   presumed  to 
care  that  the  laws  are  faithfully  executed,  and  we  think  it  would  be   act  consti- 

,  .  ,,,1  'r-'iiiif    tutionally. 

a  mistaken  view  to  hold  that  mere  specification  m  the  statute  01 
some  causes  of  removal  thereby  excluded  the  right  of  the  President 


200 


American   Government  and   Politics 


to  remove  for  any  other  reason  which  he,  acting  with  a  due  sense 
of  his  official  responsibility,  should  think  sufficient.  It  is  true 
that,  under  this  construction,  it  is  possible  that  officers  may  be 
removed  for  causes  unconnected  with  the  proper  administration 
of  the  office.  That  is  the  case  with  most  of  the  other  officers  in 
the  government.  The  only  restraint  in  cases  such  as  this  must 
consist  in  the  responsibility  of  the  President  under  his  oath  of 
office,  to  so  act  as  shall  be  for  the  general  benefit  and  welfare. 


80.    The  Executive  Departments  and  Congress  * 

Whatever  may  be  the  theory  about  the  separation  of  powers 
and  the  independence  of  the  executive,  it  remains  a  fact  that  the 
executive  departments  and  their  principal  officers  "  are  the  creatures 
of  the  laws  of  Congress,  exercising  only  such  powers  and  per- 
forming only  such  duties  as  those  laws  prescribe."  ^  The  relation 
of  the  departments  to  Congress  is  thus  described  by  Senator 
Spooner  in  a  speech  delivered  in  the  Senate. 

I  agree  entirely  with  what  the  Senator  from  Colorado  says: 
"That  we  are  in  the  habit  of  passing  resolutions  directing  the 
heads  of  all  the  departments  except  —  that  is  my  own  qualifica- 
tion —  except  the  State  Department  —  the  Secretary  of  State  — 
to  answer  interrogatories  and  to  send  to  the  Senate  information 
indicated  in  such  resolutions."  Often  I  have,  where  a  resolution 
was  in  the  form  "  requested,"  suggested  that  the  word  "  requested  " 
be  stricken  out  and  that  the  word  "directed"  be  substituted,  but 
I  have  not  known  an  instance  since  I  have  been  a  member  of  the 
Senate  in  which  the  Senate  has  directed  the  Secretary  of  State  to 
forward  to  the  Senate  copies  of  diplomatic  correspondence,  instruc- 
tions to  ministers  or  to  agents  appointed  by  the  President  to  nego- 
tiate treaties.  It  has  always  been,  so  far  as  my  memory  goes, 
in  form  a  "request"  to  the  President  to  transmit,  if  not,  in  his 
judgment,  incompatible  with  the  public  interest.  And  there  is  a 
reason,  Mr.  President,  for  this  distinction  in  the  form  of  directing 
the  Department  of  State  and  other  Departments.     No  one  will 

*  See  above,  p.  178. 


The   National  Administration  20i 

dispute  for  a  moment  that  the  conduct  of  our  foreign  aflfairs  is, 
under  the  Constitution,  entirely  in  the  hands  and  under  the  control, 
of  the  President,  and  there  never  has  been  written  a  book  on  the 
Constitution  —  Story,  Rawle,  Kent,  Pomeroy  —  any  book  upon 
the  subject  which  has  not  emphasized  the  fact,  which  is  apparent 
to  thoughtful  men,  that  the  conduct  of  our  foreign  relations,  in- 
structions by  the  President  to  ministers  and  other  diplomatic 
agents,  require  and  involve  in  the  interests  of  the  country,  more 
or  less  of  secrecy. 

The  other  Departments  of  the  Government  perform  very  many   Distinction 
duties  imposed  primarily  by  Congress,  dealing  entirely  with  our  ^'^^^^^/^  *  ^ 
domestic  afifairs,  and  therefore  the  distinction  which,  as  I  under-   of  State 
stand,  has  always  been  observed,  and  which  I  think  ought  to  be   ^^  °^^^^ 

'  ■'  '  °  Departments, 

observed,  between  the  other  Departments  of  the  Government  and 
the  Department  of  State,  so  far  as  it  relates  to  instructions  given 
to  and  correspondence  vnth  diplomatic  agents  of  the  United  States, 
ambassadors,  ministers,  and  senators. 

The  Cabinet  is  not  the  mere  retinue  of  the  President ;  the  Cabi-   Congress 

dcHncs  the 

net  taken  as  a  body  is  not  merely  the  official  family  of  the  Presi-  duties  of 
dent.  We  impose  duties  every  day  during  the  session  of  Congress  Cabinet 
by  law  upon  the  Cabinet  officers  which  it  is  beyond  the  power  of 
the  President  by  any  instruction  of  his  to  pretermit  obedience  to. 
The  Constitution  recognizes  Cabinet  officers.  It  deals  with  them 
or  characterizes  them  as  "  Heads  of  Departments."  It  authorizes 
us  —  and  when  I  say  us  I  mean  Congress  —  to  vest  in  them 
the  appointment  of  inferior  officers;  and  in  the  discharge  of  that 
function  they  are  as  independent  of  the  order  or  control  of  the 
President,  theoretically  at  least,  as  if  they  were  entirely  independ- 
ent of  the  President  in  other  respects.  The  statute  books  are 
full  of  duties  imposed  and  orders  made  by  the  Congress  to  be  exe- 
cuted by  this  member  of  the  Cabinet,  or  that  member,  or  the  other. 
But  I  draw  the  line  only  as  to  the  Secretary  of  State,  so  far  as  his 
functions  relate  to  diplomatic  correspondence  and  to  that  domain 
of  duty  in  which  he  acts  under  the  Constitution,  and  can  act  under 
the  Constitution  only  by  order  of  the  President,  and  cannot  act 
by  order  of  the  Congress. 


202 


American   Government  and    Politics 


The 

statement 
of  the 
problem. 


Principles 
laid  down 
in  other 
cases. 


8 1 .    The  Power  of  A  dministrative  Officials  to  Decide  Cases  Affecting 
Life,  Liberty,  and  Property^ 

It  is  a  theory  of  our  constitutional  law  that  the  courts  are  the 
proper  resort  of  citizens  or  persons  claiming  that  their  rights  have 
been  infringed  by  public  officers.  However,  with  the  multipHca- 
tion  of  official  duties  connected  with  immigration,  commerce, 
and  taxation,  it  was  found  necessary  to  give  to  administrative, 
i.e.,  nonjudicial  officers,  large  powers  in  deciding  finally  cases 
affecting  the  rights  of  persons.  The  question  was  speedily  raised 
whether  administrative  officials  could  constitutionally  exercise 
semi-judicial  functions,  and  the  Supreme  Court  answered  it  in  the 
affirmative,  in  the  following  case,  holding  that  due  process  of  law 
does  not  require  judicial  trial. ^ 

In  a  habeas  corpus  proceeding  in  a  District  Court  of  the  United 
States  instituted  in  behalf  of  a  person  of  Chinese  descent  being 
held  for  return  to  China  by  the  steamship  company  which  recently 
brought  him  therefrom  to  a  port  of  the  United  States  and  who 
applied  for  admission  therein  on  the  ground  that  he  was  a  native 
born  citizen  thereof  but  who,  after  a  hearing,  the  lawfully  desig- 
nated immigration  officers  found  not  born  therein  and  to  whom 
they  denied  admission,  —  which  finding  and  denial,  upon  appeal 
to  the  Secretary  of  Commerce  and  Labor  was  affirmed  —  should 
the  court  treat  the  finding  and  the  action  of  such  executive  officers 
upon  the  question  of  citizenship  and  other  questions  of  fact  as 
having  been  made  by  a  tribunal  authorized  to  decide  the  same  and 
as  final  and  conclusive  unless  it  be  made  affirmatively  to  appear  that 
such  officers,  in  the  case  submitted  to  them,  abused  the  discretion 
vested  in  them  or  in  some  other  way  in  hearing  and  determining 
the  same  committed  prejudicial  error?  The  broad  question  is 
presented  whether  or  not  the  decision  of  the  Secretary  of  Commerce 
and  Labor  is  conclusive. 

In  the  Japanese  Immigrant  Case  (Yamataya  v.  Fisher),  189 
U.  S.,  86,  97,  it  was  said:  "That  Congress  may  exclude  aliens  of 

'  For  an  excellent  article  on  the  subject,  see  The  Political  Science  Review, 
Vol.  I,  583  fif.,  an  article  by  Thomas  Reed  Powell. 


The  National  Administration  203 

a  particular  race  from  the  United  States ;  prescribe  the  terms  and 
conditions  upon  which  certain  classes  of  aliens  may  come  to  this 
country ;  establish  regulations  for  sending  out  of  the  country  such 
aliens  as  come  here  in  violation  of  the  law;  and  commit  the  en- 
forcement of  such  provisions,  conditions,  and  regulations  exclu- 
sively to  executive  officers  without  judicial  intervention,  are  prin- 
ciples firmly  established  by  the  decisions  of  this  court."  In  Fok 
Young  Yo  V.  United  States,  185  U.  S.,  296,  304,  305,  it  was  held 
that  the  decision  of  the  collector  of  customs  on  the  right  of  transit 
across  the  territory  of  the  United  States  was  conclusive,  and,  still 
more  to  the  point,  in  Lem  Moon  Sing  v.  United  States,  158  U.  S., 
538,  where  the  petitioner  for  habeas  corpus  alleged  facts  which,  if 
true,  gave  him  a  right  to  enter  and  remain  in  the  country,  it  was 
held  that  a  decision  of  the  collector  was  final  as  to  whether  or  not 
he  belonged  to  the  privileged  class. 

In  view  of  the  cases  which  we  have  cited  it  seems  no  longer  open  Due  process 
to  discuss  the  question  propounded  as  a  new  one.  Therefore  we  ^^^  require 
do  not  analyze  the  nature  of  the  right  of  a  person  presenting  him-  judicial  trial, 
self  at  the  frontier  for  admission.  But  it  is  not  improper  to  add  a 
few  words.  The  petitioner,  although  physically  within  our  bound- 
aries, is  to  be  regarded  as  if  he  had  been  stopped  at  the  limit  of  our 
jurisdiction  and  kept  there  while  his  right  to  enter  was  under  de- 
bate. If,  for  the  purpose  of  argument,  we  assume  that  the  Fifth 
amendment  *  applies  to  him  and  that  to  deny  entrance  to  a  citizen 
is  to  deprive  him  of  liberty,  we  nevertheless  are  of  the  opinion  that 
with  regard  to  him  due  process  of  law  does  not  require  a  judicial 
trial.  That  is  the  result  of  the  cases  which  we  have  cited  and  the 
almost  necessary  result  of  the  power  of  Congress  to  pass  exclusion 
laws.  That  the  decision  may  be  entrusted  to  an  executive  officer 
and  that  his  decision  is  due  process  of  law  was  affirmed  and  ex- 
plained in  Hishimura  Ekiu  v.  United  States,  142  U.  S.,  651,  660. 

'  See  above,  p.  137. 


204 


American  Government  and  Politics 


82.    The  Fraud  Orders  of  the  Post-office  Department^ 

Another  example  of  the  way  in  which  private  rights  are  sub- 
jected to  administrative  discretion  without  relief  by  judicial 
process  is  afforded  by  the  right  of  the  Postmaster- General  to  ex- 
clude summarily  from  the  mails  anything  that  he  may  deem 
fraudulent.  The  following  attack  made  in  Congress  on  this 
practice  indicates  the  dangers  of  carrying  the  powers  of  adminis- 
trative officials  too  far. 


The  Supreme  Court  has  held  that  the  fraud- order  power  may 
be  conferred  upon  the  Postmaster- General  because  the  right  to  the 
mail  is  a  privilege  and  not  a  vested  right,  and  that  the  proceeding 
is  not  criminal  in  its  character.  While  this  may  be  the  correct 
constitutional  theory,  yet  the  party  against  whom  a  fraud-order 
is  issued  is  branded  as  a  criminal  and  stigmatized  as  a  perpetrator  of 
fraud.  It  makes  him  an  outlaw  as  far  as  one  of  the  most  impor- 
tant branches  of  the  Government  is  concerned.  The  issuance  of 
such  an  order  covers  all  his  mail  and  deprives  him  of  the  right  to 
communicate  with  his  friends,  his  wife,  or  his  mother,  or  to  receive 
any  communicati<jn  from  them  by  means  of  the  mails. 

All  of  this  is  done  upon  confidential  reports,  the  result  of  secret 
investigations  based  upon  ex  parte  statements  of  persons  whose 
motives  cannot  be  known,  who  may  be  responsible  or  who  may  be 
irresponsible,  who  may  not  be  competent  witnesses,  and  who  arc 
not  sworn  and  do  not  carry  the  responsibilities  of  ordinary  wit- 
nesses. Their  names  and  identity  are  not  disclosed,  and  their 
evidence  does  not  contain  one  single  safeguard  against  fraud  or 
one  single  test  of  credibility.  Such  evidence  would  not  be  received 
in  the  humblest  magistrate's  court  of  the  country  in  a  case  involv- 
ing the  investigation  of  the  most  inconsequential  right  of  person 
or  property. 

The  investigation  and  decision  of  fraud-order  cases  under  the 
practice  in  the  Department  is  necessarily  made  by  the  Assistant 
Attorney-General.  During  the  two  years  ending  June  30  last, 
660  fraud  orders  were  issued  and  a  number  of  cases  investigated 


The  National   Administration  205 

where  the  accused  agreed  to  modify  his  advertising  matter  so  that 
it  would  conform  to  the  ideas  of  propriety  of  the  Assistant  Attor- 
ney-General, thereby  obviating  the  issuing  of  an  order  excluding 
him  from  the  mails.  Over  one  case  a  day  had  to  be  examined 
and  decided,  and  it  would  be  out  of  the  question  for  the  Postmaster- 
General  to  give  his  personal  attention  to  the  examination  and 
decision  of  these  cases  and  attend  to  the  other  arduous  and  multi- 
farious duties  of  his  office.  The  Assistant  Attorney- General 
devotes  the  bulk  of  his  time  to  the  fraud-order  business.  He 
refers  complaints  to  post-office  inspectors,  examines  reports,  de- 
cides questions  of  law  and  fact,  hears  matter  in  defense,  and  prac- 
tically has  the  decision  of  the  ultimate  question  as  to  whether  a 
fraud  order  shall  be  issued  or  not,  although  the  work  is  done  in  the 
name  of  the  Postmaster-General.  .  .  . 

I  have  no  sympathy  with  or  respect  for  the  policy  that  affects  The  citizen 
the  important  rights  of  person,  reputation,  or  property  by  means  of  ^g^j.  f^^ 
confidential   reports   of  secret   emissaries   of   the   law.     Reports  evidence  ^ 
containing  evidence  respecting  the  rights  of  the  citizen  should  ^^^'"^    ^^^ 
always  be  made  public.    No  consideration  of  delicacy  or  embarrass- 
ment should  justify  the  Government  in  blasting  the  reputation 
and  ruining  the  business  of  a  citizen  without  giving  him  an  oppor- 
tunity to  know  exactly  who  has  testified  against  him  and  to  what 
he  has  testified.     The  reports  of  inspectors  under  any  practice 
should  be  open  to  the  person  who  may  be  affected  by  the  fraud- 
order.     He  should  be  allowed  to  know  who  have  given  information 
or  testified  against  him,  and  citizens  who  are  interviewed  should 
understand  that  their  names  and  statements  would  be  open  to 
inspection  by  the  person  against  whom  they  testify  or  give  informa- 
tion.    This  would  have  a  most  wholesome  and  salutary  influence. 
Men  would  see  that  the  statements  that  were  written  up  by  the 
post-office  inspectors  and  credited  to  them  were  fair  and  just  and 
absolutely  true.     There  should  be  no  inducement  or  opportunity 
for  men  to  attempt  to  stab  the  business  or  reputation  of  rivals  ia 
the  dark. 


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American  Government  and  Politics 


83.    The  "Spoils  System^^  in  National  Administration 

It  was  early  discovered  that  federal  offices  could  be  used  to 
reward  friends  and  punish  enemies  without  regard  to  administra- 
tive efficiency,  and  this  practice  steadily  developed  until,  in 
Andrew  Jackson's  day,  it  became  an  open  and  avowed  rule  of 
politics.  The  pass  to  which  the  unhampered  spoils  system  brouglit 
the  national  administration  is  described  in  the  following  report 
to  the  Senatejn  18S2. 

The  growth  of  our  country  from  350,000  square  miles  to  4,000,000, 
the  increase  of  population  from  3,000,000  to  50,000,000,  the  addi- 
tion of  twenty-five  States,  imperial  in  size  and  capabilities,  have 
caused  a  corresponding  development  of  the  machinery  and  facul- 
ties of  the  government.  In  the  beginning  —  even  so  late  as  1801  — 
there  were  906  post-offices;  now  there  are  44,848.  Then  there 
were  69  custom-houses;  now  there  are  135.  Then  the  revenues 
were  less  than  $3,000,000;  now  they  are  $400,000,000.  Then  our 
ministers  to  foreign  countries  were  4 ;  now  they  are  2,2>-  Then  our 
consuls  were  63;  now  they  are  728.  Then  less  than  1,000  men 
sufficed  to  administer  the  government;  now  more  than  100,000  are 
needed.  Then  one  man  might  personally  know,  appoint  on  their 
merits,  supervise  the  performance  of  their  duties,  and  for  sufficient 
cause  remove  all  officers;  now,  no  single  human  being,  however 
great  his  intelligence,  discrimination,  industry,  endurance,  devo- 
tion, even  if  relieved  of  every  other  duty,  can  possibly,  unaided, 
select  and  retain  in  official  station  those  best  fitted  to  discharge 
the  many  and  varied  and  delicate  functions  of  the  government. 

It  has  come  to  pass  that  the  work  of  paying  political  debts  and 
discharging  political  obligations,  of  rewarding  personal  friends  and 
punishing  personal  foes,  is  the  first  to  confront  each  President 
on  assuming  the  duties  of  his  office,  and  is  ever  present  with  him 
even  to  the  last  moment  of  his  official  term,  giving  him  no  rest  and 
little  time  for  the  transaction  of  other  business,  or  for  the  study 
of  any  higher  or  grander  problems  of  statesmanship.  He  is  com- 
pelled to  give  daily  audience  to  those  who  personally  seek  place, 
or  to  the  army  of  those  who  back  them.     He  is  to  do  what  some 


The  National  Administration  207 

predecessor  of  his  has  left  undone,  or  to  undo  what  others  before 
him  have  done ;  to  put  this  man  up  and  that  man  down,  as  the  sys- 
tem of  political  rewards  and  punishments  shall  seem  to  him  to 
demand.  Instead  of  the  study  of  great  questions  of  statesmanship, 
of  broad  and  comprehensive  administrative  poHcy,  either  as  It 
may  concern  this  particular  country  at  home,  or  the  relations  of 
this  great  nation  to  the  other  nations  of  the  earth,  he  must  devote 
himself  to  the  petty  business  of  weighing  in  the  balance  the  politi- 
cal considerations  that  shall  determine  the  claim  of  this  friend  or 
that  political  supporter  to  the  possession  of  some  office  of  profit 
or  honor  under  him. 

The  office  of  Chief  Magistrate  has  undergone  in  practice  a  The 
radical  change.     The  President  of  the  Republic  created  by  the   Ke'^^'™ 
Constitution  in  the  beginning,  and  the  Chief  Magistrate  of  to-day.    President's 
are  two  entirely  different  public  functionaries.     There  has  grown  °^^^- 
up  such  a  perversion  of  the  duties  of  that  high  office,  such  a  pros- 
titution of  it  to  ends  unworthy  the  great  idea  of  its  creation,  im- 
posing burdens  so  grievous,  and  so  degrading  of  all  the  faculties  and 
functions  becoming  its  occupant,  that  a  change  has  already  come 
in  the  character  of  the  government  itself,  which,  if  not  corrected, 
will  be  permanent  and  disastrous.     Thus  hampered  and  beset, 
the  Chief  Magistrate  of  this  nation  wears  out  his  term  and  his  life 
in  the  petty  services  of  party,  and  in  the  bestowal  of  the  favors  its 
ascendency  commands.     He  gives  daily  audience  to  beggars  for 
place,  and  sits  in  judgment  upon  the  party  claims  of  contestants. 

The  Executive  Mansion  is  besieged,  if  not  sacked,  and  its  corri-   The  nation 
dors  and  chambers  are  crowded  each  day  with  the  ever-changing,   ]-,""o|^'ce*^ 
but  never-ending  throng.     Every  Chief  Magistrate,  since  the  evil   seekers, 
has  grown  to  its  present  proportions,  has  cried  out  for  deliverance. 
Physical  endurance,  even,  is  taxed  beyond  its  power.     More  than 
one  President  is  believed  to  have  lost  his  life  from  this  cause.     The 
spectacle  exhibited  of  the  Chief  Magistrate  of  this  great  nation, 
feeding,  like  a  keeper,  his  flock,  the  hungry,  clamorous,  crowding, 
jostling  multitude  which  daily  gathers  around  the  dispenser  of 
patronage,  is  humiliating  to  the  patriotic  citizen  interested  alone 


2o8 


American   Government  and   Politics 


in  national  progress  and  grandeur.  Each  President,  whatever 
may  be  his  poUtical  associations,  however  strong  may  be  his  per- 
sonal characteristics,  steps  into  a  current,  the  force  of  which  is 
constantly  increasing.  He  can  neither  stem  nor  control  it,  much 
less  direct  his  own  course,  as  he  is  buffeted  and  driven  hither  and 
thither  by  its  uncertain  and  unmanageable  forces. 

The  malign  influence  of  political  domination  in  appointments  to 
office  is  wide-spread,  and  reaches  out  from  the  President  himself 
to  all  possible  means  of  approach  to  the  appointing  power.  It 
poisons  the  very  air  we  breathe.  No  Congressman  in  accord  with 
the  dispenser  of  power  can  wholly  escape  it.  It  is  ever  present. 
When  he  awakes  in  the  morning  it  is  at  his  door,  and  when  he 
retires  at  night  it  haunts  his  chamber.  It  goes  before  him,  it 
follows  after  him,  and  it  meets  him  on  the  way.  It  levies  con- 
tributions on  all  the  relationships  of  a  Congressman's  life,  summons 
kinship  and  friendship  and  interest  to  its  aid,  and  imposes  upon 
him  a  work  which  is  never  finished  and  from  which  there  is  no 
release.  Time  is  consumed,  strength  is  exhausted,  the  mind  is 
absorbed,  and  the  vital  forces  of  the  legislator,  mental,  as  well  as 
physical,  are  spent  in  the  never-ending  struggle  for  ofiices. 


The  Civil 

Service 

Commission. 


84.    The  Civil  Service  Act 

In  order  to  remove  a  large  number  of  routine  and  subordinate 
offices  from  the  baneful  influence  of  partisanship,  Congress 
passed  in  1883  an  act  authorizing  the  establishment  of  a  system  of 
examinations  testing  the  fitness  of  candidates  for  certain  classes 
of  government  positions.  The  clauses  showing  the  general 
purpose  of  the  act  are  given  here :  — 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  Presi- 
dent is  authorized  to  appoint,  by  and  with  the  advice  and  consent 
of  the  Senate,  three  persons,  not  more  than  two  of  whom  shall  be 
adherents  of  the  same  party,  as  Civil  Service  Commissioners,  and 
said  three  Commissioners  shall  constitute  the  United  States  Civil 
Service  Commission.     Said  Commissioners  shall  hold  no  other 


The  National  Administration  209 

official  place  under  the  United  States.  The  President  may  remove 
any  Commissioner;  and  any  vacancy  in  the  position  of  Commis- 
sioner shall  be  so  filled  by  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate,  as  to  conform  to  said  conditions  for 
the  first  selection  of  Commissioners.  The  Commissioners  shall 
each  receive  a  salary  of  three  thousand  five  hundred  dollars  a  year. 
And  each  of  said  Commissioners  shall  be  paid  his  necessary  travel- 
ing expenses  incurred  in  the  discharge  of  his  duty  as  a  Commis- 
sioner. 

Sec.  2.   That  it  shall  be  the  duty  of  said  Commissioners: 

First.    To  aid  the  President,  as  he  may  request,  in  preparing   Duties 
suitable  rules  for  carrying  this  act  into  effect,  and  when  said  rules   Commission 
shall  have  been  promulgated  it  shall  be  the  duty  of  all  officers  of 
the  United  States  in  the  departments  and  offices  to  which  any  such 
rules  may  relate  to  aid,  in  all  proper  ways,  in  carrying  said  rules, 
and  any  modifications  thereof,  into  effect. 

Second.  And,  among  other  things,  said  rules  shall  provide  and 
declare,  as  nearly  as  the  conditions  of  good  administration  will 
warrant,  as  follows : 

First,  for  open,  competitive  examinations  for  testing  the  fitness 
of  applicants  for  the  public  service  now  classified  or  to  be  classified 
hereunder.  Such  examinations  -shall  be  practical  in  their  charac- 
ter, and  so  far  as  may  be  shall  relate  to  those  matters  which  will 
fairly  test  the  relative  capacity  and  fitness  of  the  persons  examined 
to  discharge  the  duties  of  the  service  into  which  they  seek  to  be 
appointed. 

Second,  that  all  the  offices,  places,  and  employments  so  arranged 
or  to  be  arranged  in  classes  shall  be  filled  by  selections  according 
to  grade  from  among  those  graded  highest  as  the  results  of  such 
competitive  examinations. 

Third,  appointments  to  the  public  service  aforesaid  in  the  de- 
partments at  Washington  shall  be  apportioned  among  the  several 
States  and  Territories  and  the  District  of  Columbia  upon  the  basis 
of  population  as  ascertained  at  the  last  preceding  census.  Every 
apphcation  for  an  examination  shall  contain,  among  other  things, 


2IO  American   Government  and  Politics 

a  statement,  under  oath,  setting  forth  his  or  her  actual  bona  fide 
residence  at  the  time  of  making  the  application,  as  well  as  how  long 
he  or  she.  has  been  a  resident  of  such  place. 

Fourth,  that  there  shall  be  a  period  of  probation  before  any 
absolute  appointment  or  employment  aforesaid. 

Fifth,  that  no  person  in  the  public  service  is  for  that  reason  under 
any  obligations  to  contribute  to  any  political  fund,  or  to  render  any 
poUtical  service,  and  that  he  will  not  be  removed  or  otherwise 
prejudiced  for  refusing  to  do  so. 

Sixth,  that  no  person  in  said  service  has  any  right  to  use  his  offi- 
cial authority  or  influence  to  coerce  the  political  action  of  any 
person  or  bod) 

)eventh,  there  shall  be  noncompetitive  examinations  in  all  proper 
cases  before  the  Commission,  when  competent  persons  do  not 
compete,  after  notice  has  been  given  of  the  existence  of  the  vacancy, 
under  such  rules  as  may  be  prescribed  by  the  Commissioners  as 
to  the  manner  of  giving  notice. 

Eighth,  that  notice  shall  be  given  in  writing  by  the  appointing 
power  to  said  Commission  of  the  persons  selected  for  appointment 
or  employment  from  among  those  who  have  been  examined,  of  the 
place  of  residence  of  such  persons,  of  the  rejection  of  any  such 
persons  after  probation,  of  transfers,  resignations,  and  removals, 
and  of  the  date  thereof,  and  a  record  of  the  same  shall  be  kept  by 
said  Commission. 

And  any  necessary  exceptions  from  said  eight  fundamental 
provisions  of  the  rules  shall  be  set  forth  in  connection  with  such 
rules,  and  the  reasons  therefor  shall  be  stated  in  the  annual  re- 
ports of  the  Commission. 

•  Third.  Said  Commission  shall,  subject  to  the  rules  that  may  be 
made  by  the  President,  make  regulations  for,  and  have  control  of, 
such  examinations,  and,  through  its  members  or  the  examiners, 
it  shall  supervise  and  preserve  the  records  of  the  same;  and  said 
Commission  shall  keep  minutes  of  its  own  proceedings. 

Fourth.  Said  Commission  may  make  investigations  concerning 
the  facts,  and  may  report  upon  all  matters  touching  the  enforce- 


The   National  Administration  211 

ment  and  effects  of  said  rules  and  regulations,  and  concerning 
the  action  of  any  examiner  or  board  of  examiners  hereinafter 
provided  for,  and  its  own  subordinates,  and  those  in  the  public 
service,  in  respect  to  the  execution  of  this  act. 

Fifth.  Said  Commission  shall  make  an  annual  report  to  the 
President  for  transmission  to  Congress,  showing  its  own  action, 
the  rules  and  regulations  and  the  exceptions  thereto  in  force,  the 
practical  effects  thereof,  and  any  suggestions  it  may  approve  for 
the  more  effectual  accomplishment  of  the  purposes  of  this  act. 

85.    President  Cleveland  and  the  Place  Hunters 

Notwithstanding  the  removal  of  a  large  number  of  offices  from 
the  operations  of  the  spoils  system,  enough  political  appointments 
remained  to  harass  the  President.  Mr.  Cleveland  shortly  after 
taking  office  in  1893  issued  the  following  plea  for  help. 

Executive  Mansion,  May  8,  1893. 

It  has  become  apparent  after  two  months'  experience  that  the  The  limits 
rules  heretofore  promulgated  regulating  interviews  vdth  the  Presi-  °nrereached 
dent  have  wholly  failed  in  their  operation.  The  time  which  under 
these  rules  was  set  apart  for  the  reception  of  Senators  and  Repre- 
sentatives has  been  almost  entirely  spent  in  hstening  to  apphca- 
tions  for  office,  which  have  been  bewildering  in  volume,  perplexing 
and  exhausting  in  their  iteration,  and  impossible  of  remembrance. 
A  due  regard  for  public  duty,  which  must  be  neglected  if  present 
conditions  continue,  and  an  observance  of  the  limitations  placed 
upon  human  endurance  obHge  me  to  decHne  from  and  after  this 
date  all  personal  interviews  with  those  seeking  appointments  to 
office,  except  as  I  on  my  own  motion  may  especially  invite  them. 
The  same  considerations  make  it  impossible  for  me  to  receive  those 
who  merely  desire  to  pay  their  respects  except  on  the  days  and  during 
the  hours  especially  designated  for  that  purpose. 

I  earnestly  request  Senators  and  Representatives  to  aid  me  in 
securing  for  them  uninterrupted  interviews  by  declining  to  intro- 
duce their  constituents  and  friends  when  visiting  the  Executive 


212  American   Government  and   Politics 

Mansion  during  the  hours  designated  for  their  reception.  Appli- 
cants for  office  will  only  prejudice  their  prospects  by  repeated 
importunity  and  by  remaining  in  Washington  to  await  results. 

Grover  Cleveland. 

86.   Senatorial  Courtesy 

The  President  is  authorized,  under  the  Constitution,  to  nomi- 
nate and,  by  and  with  the  advice  and  consent  of  the  Senate,  to 
appoint  certain  federal  officers,  but  he  has  by  no  means  a  free  hand 
in  selecting  candidates  to  propose  to  the  Senate.  By  a  practice 
known  as  "senatorial  courtesy"  the  senators  from  each  state 
who  belong  to  the  President's  party  have  the  right  to  select  the 
important  local  federal  officers,  and  their  fellow-senators  as  a 
rule  will  confirm  only  nominees  so  selected.  An  instance  of  the 
application  of  this  rule  is  thus  given  by  Mr.  Boutwell  in  his 
Reminiscences :  — 

One  of  my  last  acts  as  Secretary  was  to  advise  the  President  to 
nominate  a  Mr.  Hitchcock  for  collector  of  the  port  of  San  Diego, 
California.  Hitchcock  was  a  lawyer  by  profession,  a  graduate  of 
Harvard  and  a  man  of  good  standing  in  San  Diego.  Mr.  Hough- 
ton, the  member  for  the  San  Diego  district,  had  recommended  a 
man  who  was  a  saloon-keeper  and  a  Democrat  in  politics,  but  he 
had  supported  Houghton  in  the  canvass.  Houghton's  request 
was  supported  by  Senator  Sargent.  Upon  the  facts  as  then  under- 
stood the  President  nominated  Hitchcock  and  one  of  the  first 
questions  of  interest  to  me  was  the  action  of  the  Senate  upon  the 
nomination  of  Hitchcock  which  I  supported.  Sargent  appealed 
to  what  was  known  as  the  courtesy  of  the  Senate,  a  rule  or  custom 
which  required  Senators  of  the  same  party  to  follow  the  lead  of 
Senators  in  the  matter  of  nominations  from  the  respective  States. 
To  this  rule  I  objected.  I  refused  to  recognize  it,  and  I  said  I 
would  never  appeal  to  the  "courtesy"  of  the  Senate  in  any  matter 
concerning  the  State  of  Massachusetts.  Hitchcock  was  rejected. 
The  President  nominated  Houghton's  candidate. 


The   National  Administration  213 

87.    Congressmen  and  Federal  Offices 

There  are  also  a  large  number  of  minor  federal  officers  who 
are  appointed  principally  for  political  considerations,  and  the 
distribution  of  these  offices  is  intrusted  to  the  Representatives  of 
the  respective  districts  in  v^hich  they  ar^  located.  The  following 
letter  from  Mr.  Lincoln  illustrates  the  character  of  a  burdensome 
task  which  still  falls  upon  Representatives  in  Congress. 

Washington,  March  10,  1849. 
Hon.  Secretary  of  State. 

Sir  :  There  are  several  applicants  for  the  office  of  United  States 
Marshal  for  the  District  of  lUinqis,  among  the  most  prominent  of 

whom  are  Benjamin  Bond,  Esq.,  of  Carlyle,  and Thomas, 

Esq.,  of  Galena.  Mr.  Bond  I  know  to  be  personally  every  way 
worthy  of  the  office ;  and  he  is  very  numerously  and  most  respect- 
ably recommended.  His  papers  I  send  to  you;  and  I  solicit  for 
his  claims  a  full  and  fair  consideration. 

Having  said  this  much,  I  add  that  in  my  individual  judgment 
the  appointment  of  Mr.  Thomas  would  be  the  better. 

Your  obedient  servant, 

A.  Lincoln. 


CHAPTER  XII 


THE   CONGRESS   OF   THE   UNITED   STATES 

88.  Provisions  of  the  Federal  Constitution  Relative  to  the  Organiza- 
tion of  Congress 

We,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranc^uillity,  pro- 
vide for  the  common  defense,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  Constitution  for  the  United  States  of 
America. 

Article  I 

Section  I.  All  legislative  powers  herein  granted  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  consist  of  a  Senate 
and  a  House  of  Representatives. 

Section  II.  i.  TheHouseof  Representatives  shall  be  composed 
of  members  chosen  every  second  year  by  the  people  of  the  several 
States ;  and  the  electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the  State 
Legislature. 

2.  No  person  shall  be  a  representative  who  shall  not  have  attained 
to  the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of 
the  United  States,  and  who  shall  not,  when  elected,  be  an  inhabit- 
ant of  that  State  in  which  he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union, 
according  to  their  respective  numbers,  which  shall  be  deter- 
mined by  adding  to  the  whole  number  of  free  persons,  including 
those  bound  to  service  for  a  term  of  years,  and  excluding  Indians 

214 


The  Congress  of  the   United  States  215 

not  taxed,  three-fifths  of  all  other  persons.^  The  actual  enumeration 
shall  be  made  within  three  years  after  the  first  meeting  of  the  Con- 
gress of  the  United  States,  and  within  every  subsequent  term  of 
ten  years,  in  such  manner  as  they  shall  by  law  direct.  The  number 
of  representatives  shall  not  exceed  one  for  every  thirty  thousand, 
but  each  State  shall  have  at  least  one  representative;  and  until 
such  enumeration  shall  be  made,  the  State  of  New  Hampshire 
shall  be  entitled  to  choose  three,  Massachusetts  eight,  Rhode  Island 
and  Providence  Plantations  one,  Connecticut  five.  New  York  six. 
New  Jersey  four,  Pennsylvania  eight,  Delaware  one,  Maryland  six, 
Virginia  ten,  North  Carolina  five.  South  Carolina  five,,  and  Georgia 
three. 

4.  When  vacancies  happen  in  the  representations  from  any  State, 
the  executive  authority  thereof  shall  issue  writs  of  election  to  fill 
such  vacancies. 

5.  The  House  of  Representatives  shall  choose  their  speaker  and 
other  officers,  and  shall  have  the  sole  power  of  impeachment. 

Section  HI.    i.  The  Senate  of  the  United  States  shall  be  com-   The 
posed  of  two  senators  from  each  State,  chosen  by  the  Legislature 
thereof  for  six  years,  and  each  Senator  shall  have  one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  consequence  of 
the  first  election,  they  shall  be  divided,  as  equally  as  may  be,  into 
three  classes.  The  seats  of  the  senators  of  the  first  class  shall  be 
vacated  at  the  expiration  of  the  second  year,  of  the  second  class 
at  the  expiration  of  the  fourth  year,  and  of  the  third  class  at  the 
expiration  of  the  sixth  year,  so  that  one-third  may  be  chosen  every 
second  year;  and  if  vacancies  happen,  by  resignation  or  otherwise, 
during  the  recess  of  the  Legislature  of  any  State,  the  executive 
thereof  may  make  temporary  a{)pointments  until  the  next  meeting 
of  the  Legislature,  which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  senator  who  shall  not  have  attained  to 
the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that 
State  for  which  he  shall  be  chosen. 

'  See  Amendmtnts  Xni-X\'  lii-low,  pp.  392-394. 


Senate. 


2l6 


American   Government  and   Politics 


4.  The  Vice-President  of  the  United  States  shall  be  President  of 
the  Senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

5.  The  Senate  shall  choose  their  officers,  and  also  a  president 
pro  tempore^  in  the  absence  of  the  Vice-President,  or  when  he  shall 
exercise  the  office  of  President  of  the  United  States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation. 
When  the  President  of  the  United  States  is  tried,  the  chief  justice 
shall  preside ;  and  no  person  shall  be  convicted  vnthout  the  con- 
currence of  two-thirds  of  the  members  present. 

7  Judgment  in  case  of  impeachment  shall  not  extend  farther 
than  to  removal  from  office,  and  disquaUfication  to  hold  and  enjoy 
any  office  of  honor,  trust,  or  profit  under  the  United  States ;  but  the 
party  convicted  shall,  nevertheless,  be  liable  and  subject  to  indict- 
ment, trial,  judgment,  and  punishment  according  to  law. 

Section  IV.  i.  The  times,  places,  and  manner  of  holding 
elections  for  senators  and  representatives  shall  be  prescribed  in 
each  State  by  the  Legislature  thereof ;  but  the  Congress  may  at  any 
time,  by  law,  make  or  alter  such  regulations,  except  as  to  the  place 
of  choosing  senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every  year,  and 
such  meeting  shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  law  appoint  a  different  day. 

Section  V.  i.  Each  house  shall  be  the  judge  of  the  elections, 
returns,  and  qualifications  of  its  own  members,  and  a  majority  of 
each  shall  constitute  a  quorum  to  do  business;  but  a  smaller 
number  may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  attendance  of  absent  members,  in  such  manner  and 
under  such  penalties  as  each  house  may  provide. 

2.  Each  house  may  determine  the  rules  of  its  proceedings, 
punish  its  members  for  disorderly  behavior,  and,  with  the  concur- 
rence of  two-thirds,  expel  a  member. 

3.  Each  house  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may  in 
their  judgment  require  secrecy ;  and  the  yeas  and  nays  of  the  mem- 


The  Congress  of  the  United  States  217 

bers  of  either  house,  on  any  question,  shall,  at  the  desire  of  one- 
fifth  of  those  present,  be  entered  on  the  journal. 

4.  Neither  house  during  the  session  of  Congress  shall,  without 
the  consent  of  the  other,  adjourn  for  more  than  three  days,  nor 
to  any  other  place  than  that  in  which  the  two  houses  shall  be  sitting. 

Section  VI.  i.  The  senators  and  representatives  shall  receive  Disabilities 
a  compensation  for  their  services,  to  be  ascertained  by  law,  and 
paid  out  of  the  treasury  of  the  United  States.  They  shall  in  all 
cases,  except  treason,  felony,  breach  of  the  peace,  be  privileged 
from  arrest  during  their  attendance  at  the  session  of  their  respec- 
tive houses,  and  in  going  to  or  returning  from  the  same ;  and  for 
any  speech  or  debate  in  either  house,  they  shall  not  be  questioned 
in  any  other  place. 

2.  No  senator  or  representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office  under  the  authority 
of  the  United  States,  which  shall  have  been  created,  or  the  emolu- 
ments whereof  shall  have  been  increased,  during  such  time;  and 
no  person  holding  any  office  under  the  United  States  shall  be  a 
member  of  either  house  during  his  continuance  in  office. 

Section  VII.    i.  All  bills  for  raising  revenues  shall  originate   Mode  of 
in  the  House  of  Representatives ;   but  the  Senate  may  propose  or  P'^^^^"^  ^^  ■ 
concur  with  amendments,  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  House  of  Representa- 
tives and  the  Senate  shall,  before  it  become  a  law,  be  presented  to 
the  President  of  the  United  States;  if  he  approve,  he  shall  sign  it; 
but  if  not,  he  shall  return  it,  with  his  objections,  to  that  house  in 
which  it  shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If,  after  such 
reconsideration,  two-thirds  of  that  house  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other  house, 
by  which  it  shall  likewise  be  reconsidered,  and  if  approved  by 
two-thirds  of  that  house,  it  shall  become  a  law.  But  in  all  such 
cases  the  votes  of  both  houses  shall  be  determined  by  yeas  and  nays, 
and  the  names  of  the  persons  voting  for  and  against  the  bill  shall 
be  entered  on  the  journal  of  each  house  respectively.     If  any  bill 


2l8 


American  Government  and  Politics 


shall  not  be  returned  by  the  President  within  ten  days  (Sundays 
excepted)  after  it  shall  have  been  presented  to  him,  the  same  shall 
be  a  law  in  like  manner  as  if  he  had  signed  it,  unless  the  Congress 
by  their  adjournment  prevent  its  return,  in  which  case  it  shall  not 
be  a  law. 

3.  Every  order,  resolution,  or  vote  to  which  the  concurrence  of 
the  Senate  and  House  of  Representatives  may  be  necessary  (ex- 
cept on  a  question  of  adjournment)  shall  be  presented  to  the  Presi- 
dent of  the  United  States ;  and  before  the  same  shall  take  effect, 
shall  be  approved  by  him,  or,  being  disapproved  by  him,  shall  be 
repassed  by  two-thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  rules  and  limitations  prescribed  in  the  case  of  a 
bill. 


The  appor- 
tionment of 
members. 


Congres- 
sional 
districts. 


89.    The  Apportionment  of  Representatives  among  the  States 

After  every  census.  Congress  determines  upon  the  number  of 
Representatives  to  be  allotted  to  the  House  of  Representatives 
and  apportions  them  among  the  states  in  the  following  form.  It 
will  be  noted  that  by  Section  3  of  the  act  Congress  has  gone  further 
than  the  letter  of  the  Constitution  authorizes  and  prescribed  the 
general  character  of  each  congressional  district.^ 

An  Act  making  the  apportionment  of  Representatives  in  Con- 
gress among  the  several  States  under  the  Twelfth  Census. 

Be  it  enacted  .  .  .  That  after  the  third  day  of  March,  nine- 
teen hundred  and  three,  the  House  of  Representatives  shall  be 
composed  of  three  hundred  and  eighty-six  members  to  be  appor- 
tioned among  the  several  States  as  follows: 

Alabama  9;  Arkansas  7  ;   California  8;  Colorado  3  ;    [etc.,  etc.]. 

Sec.  2.  That  whenever  a  new  State  is  admitted  to  the  Union  the 
Representative  or  Representatives  assigned  to  it  shall  be  in  addition 
to  the  number  three  hundred  and  eighty-six. 

Sec.  3.  That  in  each  State  .  .  .  the  number  to  which  such 
State  may  be  entitled  in  the  Fifty-eighth  and  each  subsequent 


^  On  this  point  see  Burgess,  Political  Science  and  Constitutional  Law,  II,  48  sq. 


The  Congress  of  the   United  States  219 

Congress  shall  be  elected  by  districts  composed  of  contiguous  and 
compact  territory  containing  as  nearly  as  practicable  an  equal 
number  of  inhabitants.  The  said  districts  shall  be  equal  to  the 
number  of  Representatives  to  which  such  State  shall  be  entitled 
in  Congress,  no  one  district  electing  more  than  one  Representative. 

Sec.  4.  That  in  case  of  an  increase  in  the  number  of  Representa-  Members 
fives  which  may  be  given  any  State  under  this  apportionment,  such 
additional  Representatives  shall  be  elected  by  the  State  at  large  and 
the  other  Representatives  by  the  districts  now  prescribed  by  law 
until  the  legislature  of  such  State  in  the  manner  herein  prescribed 
shall  redistrict  such  State ;  .  .  .  and  if  the  number  hereby  provided 
for  shall  in  any  State  be  less  than  it  was  before  .  .  .  then  the  whole 
number  .  .  .  shall  be  elected  at  large  unless  the  legislatures  of 
said  States  have  provided  or  shall  otherwise,  provide  before  the 
time  fixed  by  law  for  the  next  election  of  Representatives  therein. 

90.    TJic  Art  of  Gerrymandering 

Subject  to  the  rule  regarding  "contiguous  territory,"  the  legis- 
lature of  each  state  may  construct  congressional  districts  after  its 
own  fashion.  As  a  matter  of  general  practice  the  political  party 
that  happens  to  be  in  power  in  the  state,  when  the  decennial  appor- 
tionment comes  around,  so  arranges  the  districts  as  to  secure  the 
largest  possible  numljer  of  Representatives  at  the  ensuing  elections. 
Sometimes  by  careful  calculation  a  legislature  may  enable  a  minor- 
ity of  the  voters  to  return  a  majority  of  Representatives  for  the  whole 
state.  This  is  the  art  of  gerrymandering.  It  is  described  in  an 
interesting  manner  in  a  speech  made  by  Mr.  McKinley  criticising 
the  action  of  the  Democratic  party  in  Ohio  in  undoing  a  reapj)or- 
tionment  made  by  the  Republicans. 

The  act  of  the  Legislature  in  reapportioning  the  counties  into  The 

Congressional  districts,  at  an  irregular  period,  is  without  precedent  ^.ttiiiK^thc 

in  Ohio  since  the  organization  of  the  RepuJjlican  party  and  without  apportion- 

example  under  the  present  Constitution.     For  thirty-three  years  "q^"],^  '"' 

the  unbroken  rule  has  been  to  form  such  districts  after  each  Federal  decennial 

census,  and  at  the  end  of  every  ten  years,  such  political  subdivisions  1*^""  ' 


11Q  American  Government  and   Politics 

to  remain  unchanged  until  the  next  census.  This  secures  a  rep- 
resentation based  upon  the  actual  number  of  inhabitants  disclosed 
at  each  census,  according  to  the  ratio  of  representation  fixed  by  the 
Congress  of  the  United  States.  No  innovation  has  been  made  upon 
this  rule  since  1845  and  then  but  a  partial  one.  Parties  have 
changed  in  numerical  strength  within  that  period,  political  suprem- 
acy has  alternated  from  one  to  the  other  of  the  great  parties,  partisan 
hate  has  been  intense  and  bitter,  party  necessities  have  been  great 
and  overshadowing.  The  majority  force  has  existed  many  times 
before,  in  both  political  parties,  but  no  Ohio  Legislature  from  1845 
to  1878  was  found  so  reckless  of  principle  and  precedent  as  to 
destroy  these  political  subdivisions  between  the  decennial  periods. 
This  action  alone,  it  seems  to  me,  is  sufficient,  when  rightly 
understood,  to  react  upon  its  authors  and  secure  for  them  a  crushing 
defeat.  It  can  not  be  too  frequently  brought  to  the  attention  of  the 
people,  nor  too  severely  denounced.  It  works  a  vital  disfranchise- 
ment of  a  large  body  of  Republicans  under  color  of  law  by  a  shame- 
ful abuse  of  power  and  in  violation  of  the  spirit  of  the  Constitution 
of  the  State  and  of  the  United  States. 
How  the  Under  the  new  law,  taking  the  vote  of  1876  as  a  basis,  when  the 

operates'^  ^^  Republicans  carried  the  State  by  over  6,000,  the  Democrats  will 
have  twelve  Congressmen  and  the  Republicans  eight.  The  re- 
districting  was  not  in  the  interest  of  fairness,  but  to  increase 
Democratic  representation,  in  violation  of  every  principle  of  fair- 
ness. It  was  not  the  work  of  the  masses  of  the  Democratic  party 
in  the  State;  it  was  not  the  creation  of  the  better  class  of  our 
political  opponents ;  it  met  with  opposition  from  the  order-loving 
and  law-abiding  citizens  alike  of  both  parties.  It  was  ordered  by 
designing  politicians  at  Washington,  to  secure  power  in  the  next 
House,  right  or  wrong;  and  the  Ohio  Legislature,  which  had 
before  always  stood  with  a  "face  of  flint"  against  every  species  of 
revolution,  yielded,  basely  yielded,  principle  and  justice  for  purely 
party  ends.  .  .  . 


The  Congress  of  the  United  States  221 


91.    The  Law  Governing  the  Election  of  Senators 

The  Constitution  states  that  the  two  Senators  from  each  common- 
wealth shall  be  elected  by  the  legislature  thereof,  and  authorizes 
Congress  to  make  regulations  regarding  the  time  and  manner  of 
the  election.  For  more  than  half  a  century  the  states  were  left 
to  their  several  devices,  but  in  1866  Congress  passed  this  statute 
prescribing  the  precise  method  to  be  followed  in  each  case :  — 

Sec.  14.   The  legislature  of  each  State  which  is  chosen  next  Time  of 
preceding  the  expiration  of  the  time  for  which  any  Senator  was  ^^*^^'°'^- 
elected  to  represent  such  State  in  Congress  shall,  on  the  second 
Tuesday  after  the  meeting  and  organization  thereof,  proceed  to 
elect  a  Senator  in  Congress. 

Sec.  15.  Such  election  shall  be  conducted  in  the  following  Mode  of 
manner:  Each  house  shall  openly,  by  a  viva-voce  vote  of  each 
member  present,  name  one  person  for  Senator  in  Congress  from 
such  State,  and  the  name  of  the  person  so  voted  for,  who  receives  a 
majority  of  the  whole  number  of  votes  cast  in  each  house,  shall  be 
entered  on  the  journal  of  that  house  by  the  clerk  or  secretary 
thereof;  or  if  either  house  fails  to  give  such  majority  to  any  person 
on  that  day,  the  fact  shall  be  entered  on  the  journal.  At  twelve 
o'clock  meridian  of  the  day  following  that  on  which  proceedings 
are  required  to  take  place  as  aforesaid,  the  members  of  the  two 
houses  shall  convene  in  joint  assembly,  and  the  journal  of  each  house 
shall  then  be  read,  and  if  the  same  person  has  received  a  majority 
of  all  the  votes  in  each  house,  he  shall  be  declared  duly  elected 
Senator. 

But  if  the  same  person  has  not  received  a  majority  of  the  votes  in 
each  house,  or  if  either  house  has  failed  to  take  proceedings  as 
required  by  this  section,  the  joint  assembly  shall  then  proceed  to 
choose,  by  a  viva-voce  vote  of  each  member  present,  a  person  for 
Senator,  and  the  person  who  receives  a  majority  of  all  the  votes  of 
the  joint  assembly,  a  majority  of  all  the  members  elected  to  both 
houses  being  present  and  voting,  shall  be  declared  duly  elected.  If 
no  person  receives  such  majority  on  the  first  day,  the  joint  assembly 


222 


American   Government  and   Politics 


shall  meet  at  twelve  o'clock  meridian  of  each  succeeding  day  during 
the  session  of  the  legislature,  and  shall  take  at  least  one  vote,  until 
a  Senator  is  elected. 

\'acancies.  Sec.   1 6.    Whenever  on  the  meeting  of  the  legislature  of  any 

State  a  vacancy  exists  in  the  representation  of  such  State  in  the 
Senate,  the  legislature  shall  proceed,  on  the  second  Tuesday  after 
meeting  and  organization,  to  elect  a  person  to  fill  such  vacancy,  in 
the  manner  prescribed  in  the  preceding  section  for  the  election  "of  a 
Senator  for  a  full  term. 

Sec.  17.  Whenever  during  a  session  of  the  legislature  of  any  State 
a  vacancy  occurs  in  the  representation  of  such  State  in  the  Senate, 
similar  proceedings  to  fill  such  vacancy  shall  be  had  on  the  second 
Tuesday  after  the  legislature  has  organized  and  has  notice  of  such 
vacancy. 

Certificate  Sec.  i8.    It  shall  be  the  duty  of  the  executive  of  the  State  from 

which  any  Senator  has  been  chosen,  to  certify  his  election,  under 
the  seal  of  the  State,  to  the  President  of  the  Senate  of  the  United 
States. 

Sec.  19.  The  certificate  mentioned  in  the  preceding  section 
shall  be  countersigned  by  the  secretary  of  state  of  the  State. 


92.    The  Original  Purpose  of  the  Senate* 

Now  that  the  Senate  has  been  subjected  to  rather  severe  criti- 
cisms in  many  quarters/  and  attempts  to  alter  its  character  have 
been  made  in  many  states  by  the  establishment  of  popular  elec- 
tion, it  seems  well  to  inquire  into  the  original  position  which  the 
framers  intended  to  give  the  Senate  in  our  political  system.  These 
passages  are  from  The  Federalist. 

.  .  .  Second.  The  necessity  of  a  senate  is  not  less  indicated  by 
the  propensity  of  all  single  and  numerous  assemblies,  to  yield  to  the 
impulse  of  sudden  and  violent  passions,  and  to  be  seduced  by 
factious  leaders  into  intemperate  and  pernicious  resolutions. 
Examples  on  this  subject  might  be  cited  vrithout  number;  and 
from  proceedings  within  the  United  States,  as  well  as  from  the 

1  Reinsch,  American  Legislatures  and  Legislative  Methods,  pp.  79  sqq. 


The  Congress  of  the   United   States  223 

history  of  other  nations.  But  a  position  that  will  not  be  contra- 
dicted, need  not  be  proved.  All  that  need  be  remarked,  is,  that 
a  body  which  is  to  correct  this  infirmity,  ought  itself  to  be  free  from 
it,  and  consequently  ought  to  hold  its  authority  by  a  tenure  of 
considerable  duration. 

Third.  Another  defect  to  be  supplied  by  a  senate,  lies  in  a  want  The  long 
of  due  acquaintance  with  the  objects  and  principles  of  legislation,  jj^g  Senator 
It  is  not  possible  that  an  assembly  of  men,  called  for  the  most  part,  experience, 
from  pursuits  of  a  private  nature,  continued  in  appointment  for  a 
short  time,  and  led  by  no  permanent  motive  to  devote  the  intervals 
of  public  occupation  to  a  study  of  the  laws,  the  affairs,  and  the 
comprehensive  interests  of  their  country,  should,  if  left  wholly  to 
themselves,  escape  a  variety  of  important  errors  in  the  exercise  of 
their  legislative  trust.  It  may  be  affirmed,  on  the  best  grounds, 
that  no  small  share  of  the  present  embarrassments  of  America  is  to 
be  charged  on  the  blunders  of  our  governments;  and  that  these 
have  proceeded  from  the  heads,  rather  than  the  hearts  of  most 
of  the  authors  of  them.  What  indeed  are  all  the  repealing,  ex- 
plaining, and  amending  laws,  which  fill  and  disgrace  our  volumi- 
nous codes,  but  so  many  monuments  of  deficient  wisdom;  so 
many  impeachments  exhibited  by  each  succeeding,  against  each 
preceding,  session;  so  many  admonitions  to  the  people,  of  the 
value  of  those  aids,  which  may  be  expected  from  a  well  constituted 
senate  ? 

Fourth.     The  mutability  in  the  pul^lic  councils,  arising  from   Frequent 

•  •  •  elections 

a  rapid  succession  of  new  members,  however  qualified  they  may  be,  ^^^^  ^q 
points  out,  in  the  strongest  manner,  the  necessity  of  some  stable  rapid 
institution  in  the  government.     Every  new  election  in  the  states,  is  ^  ^"S^^- 
found  to  change  one  half  of  the  representatives.     From  this  change 
of  men  must  proceed  a  change  of  opinions;   and  from  a  change  of 
opinions,  a  change  of  measures.     But  a  continual  change  even  of 
good  measures  is  inconsistent  with  every  rule  of   prudence,  and 
every  prospect  of  success.     The  remark  is  verified  in  private  life, 
and  becomes  more  just  as  well  as  more  important,  in  national 
transactions. 


224 


American   Government  and   Politics 


A  fifth  desideratum,  illustrating  the  utility  of  a  senate,  is  the 
want  of  a  due  sense  of  national  character.  Without  a  select  and 
stable  member  of  the  government,  the  esteem  of  foreign  powers 
will  not  only  be  forfeited  by  an  unenlightened  and  variable  policy, 
proceeding  from  the  causes  already  mentioned;  but  the  national 
councils  will  not  possess  that  sensibility  to  the  opinion  of  the  world, 
which  is  perhaps  not  less  necessary  in  order  to  merit,  than  it  is  to 
obtain,  its  respect  and  confidence.  Yet  however  requisite  a  sense 
of  national  character  may  be,  it  is  evident  that  it  can  never  be 
sufficiently  possessed  by  a  numerous  and  changeable  body.  It 
can  only  be  found  in  a  number  so  small,  that  a  sensible  degree  of  the 
praise  and  blame  of  public  measures,  may  be  the  portion  of  each 
individual ;  or  in  an  assembly  so  durably  invested  \vith  public  trust, 
that  the  pride  and  consequence  of  its  members  may  be  sensibly 
incorporated  with  the  reputation  and  prosperity  of  the  community. 

The  objects  of  government  may  be  divided  into  two  general 
classes;  the  one  depending  on  measures,  which  have  singly  an  im- 
mediate and  sensible  operation ;  the  other  depending  on  a  succession 
of  well  chosen  and  well  connected  measures,  which  have  a  gradual 
and  perhaps  unobserved  operation.  The  importance  of  the  latter 
description  to  the  collective  and  permanent  welfare  of  every  country, 
needs  no  explanation.  And  yet  it  is  evident  that  an  assembly 
elected  for  so  short  a  term  as  to  be  unable  to  provide  more  than  one 
or  two  links  in  a  chain  of  measures,  on  which  the  general  welfare 
may  essentially  depend,  ought  not  to  be  answerable  for  the  final 
result,  any  more  than  a  steward  or  tenant,  engaged  for  one  year, 
could  justly  be  made  to  answer  for  plans  or  improvements,  which 
could  not  be  accompHshed  in  less  than  half  a  dozen  years.  Nor  is 
it  possible  for  the  people  to  estimate  the  share  of  influence,  which 
their  annual  assemblies  may  respectively  have  on  events  resulting 
from  the  mixed  transactions  of  several  years.  It  is  sufficiently 
difficult,  at  any  rate,  to  preserve  a  personal  responsibiUty  in  the 
members  of  a  numerous  body,  for  such  acts  of  the  body  as  have 
an  immediate,  detached,  and  palpable  operation  on  its  constitu- 
ents. .  .  . 


The  Congress  of  the   United  States  225 

93.   Popular  Election  of  Senators  in  Oregon 

The  law  of  Oregon  makes  the  following  provisions  for  the  nomi- 
nation and  election  of  United  States  Senators  by  popular  vote. 
It  will  be  noted,  however,  that  the  federal  Constitution  provides  that 
the  state  legislature  shall  elect;  and,  to  secure  the  legislative  ap- 
proval of  the  popular  choice,  Oregon  has  adopted  the  plan  of 
permitting  the  candidates  for  the  state  legislature  to  pledge  them- 
selves in  advance  to  vote  for  the  candidate  for  United  States 
Senator  receiving  the  highest  popular  vote.  As  most  of  them 
accept  this  pledge  the  legislature  is  morally  bound  to  confirm  the 
popular  choice. 

At  all  general  primary  nominating  elections  next  preceding  the  Nomination 
election  of  a  senator  in  Congress  by  the  legislature  of  Oregon  there  ca^^jj^ates 
shall  be  placed  upon  the  official  primary  nominating  election  ballots, 
by  each  of  the  county  clerks  and  clerks  of  the  county  court,  the 
names  of  all  candidates  for  the  office  of  senator  in  Congress,  for 
whose  nominations  petitions  have  been  duly  made  and  filed  under 
the  provisions  of  this  law,  the  votes  for  which  candidates  shall  be 
counted  and  certified  to  by  the  election  judges  and  clerks  in  the 
same  manner  as  the  votes  for  other  candidates ;  and  records  of 
the  vote  for  such  candidates  shall  be  made  out  and  sworn  to  by  the 
board  of  canvassers  of  each  county  of  the  State  and  returned  to  the 
Secretary  of  State  at  the  same  time  and  in  like  manner  as  they  shall 
transmit  other  records  and  returns  required  by  this  law. 

At  all  general  elections  next  preceding  the  election  of  a  senator  in  Popular  vote 
Congress  by  the  legislature  of  Oregon  there  shall  be  placed  upon  the  candidates, 
official  ballot  by  each  of  the  county  clerks  and  clerks  of  the  county 
court  the  names  of  all  candidates  for  the  office  of  senator  in  Con- 
gress that  have  been  nominated  in  any  of  the  methods  now,  or 
which  may  hereafter  be,  provided  by  law  for  the  nomination  of 
state  officers  of  the  State  of  Oregon;  the  votes  for  which  candidates 
shall  be  counted  and  certified  to  by  the  election  judges  in  the  same 
manner  as  the  votes  for  other  candidates;  and  records  of  the 
vote  for  such  candidates  shall  be  made  out  and  sworn  to  by  the 
board  of  canvassers  of  each  county  of  the  State  and  returned  to  the 
Q 


226  American  Government  and   Politics 

Secretary  of  State,  who  shall  transmit  duplicate  copies  of  such 
returns  to  the  legislative  assembly  at  its  next  ensuing  session,  one  of 
which  shall  be  addressed  to  the  senate  and  the  other  to  the  house  of 
representatives  of  the  State  of  Oregon,  one  copy  of  which  shall  be 
delivered  by  him  to  the  president  of  the  senate  and  the  other  to  the 
speaker  of  the  house  of  representatives,  after  the  organization  of 
such  bodies,  which  officers  shall  open  and  lay  the  same  before  the 
separate  houses  when  assembled  to  elect  a  senator  in  Congress  as 
now  required  by  law  of  Congress ;  and  it  shall  be  the  duty  of  each 
house  to  count  the  votes  and  announce  the  candidate  for  senator 
having  the  highest  number,  and  thereupon  the  house  shall  proceed 
to  the  election  of  a  senator  as  required  by  the  act  of  Congress  and 
the  constitution  of  this  State. 

94.    The  Question  of  Popular  Election  of  Senators  * 

Senator  Turpie,  in  the  course  of  a  speech  made  in  the  Senate  on 
March  23,  1897,  made  the  following  arguments  in  support  of 
popular  election. 

There  is  certainly  a  very  clear  incongruity  between  legislative 
duties  and  the  office  of  choosing  Senators  of  the  United  States. 
This  disagreement  has  become  greater  as  the  country  has  grown 
older.  It  is  not  now  uncommon  that  the  legislature  of  a  State 
spends  the  whole  time  of  its  session  in  the  effort  to  elect  a  United 
States  Senator,  and  adjourns  without  succeeding  in  the  attempt. 
This  results  in  the  total  neglect  by  the  members  of  the  general 
assembly  of  their  functions  as  lawgivers  of  the  State.  Thus  the 
rights  and  interests  local  to  the  people  of  the  State  are  submerged, 
overwhelmed,  and  forgotten  in  the  struggle  over  the  Senatorial 
election.  Besides  this,  the  condition  of  political  parties  becomes 
sometimes  so  evenly  balanced  as  that  a  very  small  number  —  two 
or  three  members  of  the  legislature  belonging  to  some  middle  or 
third  party  in  a  small  minority  among  the  people  —  is  able  to 
determine  the  choice  of  Senator,  or  to  prevent  one  being  made. 
The  inability  to  elect  by  the  legislative  body  is  becoming  more  and 


The  Congress  of  the   United  States  227 

more  frequent.  It  is  not  a  physical  disability ;  it  is  rather  a  political 
or  functional  inability  induced  by  the  too  close  equilibrium  of 
dissenting  forces  which  are  unable  to  unite  upon  a  choice. 

It  is  true,  as  has  already  been  noted,  that  the  Federal  Constitu-   !'^^^,f". 

■^  .  locks     in 

tion  provides  that  no  State  shall  be  deprived  of  its  equal  suffrage   senatorial 

in  the  Senate,  but  the  fact  is  that  under  the  present  mode  of  choosing  elections. 

United  States  Senators  by  the  legislatures  many  of  the  States  have 

been,  from  time  to  time,  deprived  of  their  equal  suffrage  in  the 

Senate.     Washington,  Wyoming,  and  Montana,  in  the  cases  of 

Allen,  Beckwith,  and  Mantle,  and  Delaware  until  a  quite  recent 

date  were  so  situated,  and  at  this  very  time  the  States  of  Oregon 

and  Kentucky  are  deprived  of  their  equal  representation  in  the 

Senate  by  reason  of  the  inability  of  the  legislatures  to  elect. 

Take  the  case  of  Oregon.     It  is  not  singular.     There  have  been  ^^^,. 

.  ....  peculiar 

many  cases  of  the  kind  before  this  —  not  similar  m  circumstances,   case  of 

but  wholly  similar  in  results.  In  the  case  of  Oregon  the  State  Oregon, 
constitution  provides  for  biennial  sessions  of  the  legislature.  The 
legislature  met  there  on  the  second  Tuesday  in  January.  They 
stayed  forty-five  days  —  the  whole  of  the  constitutional  limit. 
They  did  not  organize  during  this  entire  term.  There  was  no  act ; 
there  was  no  resolution;  there  was  no  legislative  action  by  either 
house,  and  no  recognition  of  the  two  houses  by  any  department  of 
the  State  government.  When  the  forty-five  days  had  expired,  the 
persons  who  had  been  elected  to  the  general  assembly  did  not  ad- 
journ because  they  had  never  met.  They  folded  their  tents,  like 
the  Arabs,  and  went  back,  each  to  his  own  residence,  and  constit- 
uency.^ It  is  a  case,  sir  —  and  there  have  been  many  like  it  — 
where  the  inability  of  the  legislature  to  elect  destroyed,  extinguished, 
the  legislative  function  in  a  sovereign  State.  The  Senatorial  elec- 
tion was  a  question  so  dominant  and  destructive  that  the  choice  of 
Senator  prevented  even  an  attempt  at  organization  or  normal 
legislative  action.  All  these  evils  will  disappear  by  this  change  in 
the  method  of  electing  Senators.  The  people  at  large  would  not 
be  hindered  by  any  such  disability.     They  would  vote  for  the 

'  This  was,  of  course,  before  the  enactment  of  the  law  given  above,  p.  225. 


228 


American   Government  and  Politics 


The  people 
worthy  of 
trust. 


Senator  the  same  as  they  do  for  the  governor,  and  a  count  of  the 
vote  would  decide  the  election. 

The  election  of  Senators  by  a  direct  vote  of  the  people  of  the 
several  States  is  a  reform  much  needed  at  this  period  of  our 
history  to  bring  the  whole  scheme  of  government  into  harmony 
with  its  several  parts,  so  that  Senators,  whether  serving  at  Washing- 
ton or  in  the  capital  of  the  State,  shall  be  the  immediate  agents  and 
servants  of  the  people  and  be  personally  answerable  directly  to  the 
people  as  such.  The  people  in  more  than  a  hundred  years  of  our 
history,  in  peace  and  war,  in  prosperity  and  adversity,  have  shown 
themselves  entirely  worthy  of  this  trust  and  confidence. 

The  era  of  almost  exclusive  supremacy  formerly  enjoyed  by  the 
legislatures  of  the  States  has  passed  away.  The  only  remnant  of  it 
remaining  is  the  election  of  United  States  Senators,  a  method  out 
of  accord  with  the  broad  and  liberal  extension  of  the  franchise  now 
everywhere  prevalent.  The  extension  of  the  elective  franchise 
during  the  last  fifty  years  has  been  very  great,  but  the  exercise  of  it 
in  choosing  the  officers  of  the  government  in  the  several  States  has 
been  yet  greater.  The  number  of  voters  in  the  States,  by  the  aboli- 
tion of  restrictions  on  the  franchise,  has  been  very  much  increased, 
but  the  number  of  officers  to  be  voted  for  has  been  even  more  en- 
larged. In  the  early  days  of  this  Republic,  the  legislatures  of  the 
States  chose  the  whole  body  of  the  executive  and  judicial  officers 
therein,  and  often  selected  them  from  among  their  own  number. 
Thomas  Jefferson  was  elected  governor  of  Virginia  by  the  legisla- 
ture of  Virginia.  He  was  elected  a  Member  of  Congress  under  the 
Articles  of  Confederation  by  the  legislature  of  Virginia.  Even  in 
my  own  lifetime  I  recollect  being  canvassed  as  a  member  of  the 
legislature,  because  the  legislature  elected  circuit  judges  and  the 
governor  and  the  State  senate  appointed  supreme  judges.  All  this 
system  has  vanished.  That  era  has  disappeared.  These  vast 
delegations  of  power  have  melted  away  in  the  presence  of  the 
people,  and  this  remnant  left  alone  will  dissolve  also. 

Now,  in  every  one  of  the  forty-five  States,  but  with  few  excep- 
tions, these  officers,  from  the  highest  to  the  lowest,  are  elected  by  a 


The  Congress  of  the   United   States  229 

direct  vote  of  the  people.  The  pending  amendment  does  not  pro- 
pose so  great  a  change  as  this,  but  it  does  propose  that  the  Congress, 
in  both  branches,  shall  be  chosen  by  the  people  in  the  same  manner 
as  the  senate  and  house  of  the  legislatures  of  the  States  are  now 
chosen.  Thus  we  may  perfect  the  symmetry  of  our  frame  of  gov- 
ernment, and  recognize  the  immediate  sovereignty  of  the  people  in 
its  legislative  department.  .  .  . 

The  legislative  caucus,  which  at  the  capital  of  a  State  usually  '^^^  caucus 
selects  the  candidate  for  a  membership  of  this  body,  is  an  assembly  legislature 
peculiarly  adapted  to  the  machinations  of  syndicates  and  trusts,  ^^l^^ts  any- 
The  whole  number  of  such  a  conference  is  small.  The  number 
necessary  to  control  its  choice  is  yet  smaller.  The  members  of  it 
are  persons  in  the  exercise  of  delegated  powers,  distant  from  their 
constituencies,  and  most  liable  to  temptation.  In  such  an  assembly 
the  intrigue  and  corruption  of  the  trusts  are  plants  of  indigenous 
growth.  All  this  evil,  and  what  is  of  almost  as  much  moment,  the 
suspicion  of  evil,  is  obliterated;  it  is  swept  away  by  the  change 
which  we  propose.  When  each  voter  of  the  whole  mass  of  voters 
in  the  State  is  allowed  the  privilege  of  personally  choosing  the 
Senator,  the  power  of  that  syndicate,  which  is  always  a  minority 
in  numbers,  is  broken.  Nor  is  it  any  answer  to  these  considerations 
to  assume  that  a  State  convention  would  be  as  subject  to  these 
malignant  influences  as  a  legislative  caucus;  even  if  this  were 
true,  the  action  of  a  convention  is  not  final.  It  must  yet  abide, 
under  our  plan,  the  scrutiny  of  a  popular  vote,  while  the  action  of 
the  caucus  is  final,  and  may  often  result  in  a  choice  directly  ad- 
verse to  popular  rights  and  interests. 

The  other  side  of  the  cjuestion  of  popular  election  is  thus  up- 
held by  Senator  Edmunds :  — 

The  founders  of  the  republic  believed  that  the  liberty  and  hap-  It  is 

piness  of  the  people  of  the  several  States  —  States  whicli  they  ^j^'.^^  ^j^^, 

foresaw  would  ilnally  embrace  a  continent  in  their  benign  sway  —  Senate  is 

could  only  be  preserved  by  such  divisions  and  subdivisions  of  the  ';'"'[.''^*^" 
sources  and  methods  and  exercise  of  political  power  as  they  adopted 


230 


American   Government  and   Politics 


and  provided  for.  A  century  of  experience  has  demonstrated  the 
wisdom  of  their  marvellous  plan.  But  a  new  school  of  poUticians 
has  now  appeared  who  profess  to  believe  that  the  Fathers  were 
mistaken  in  their  theory  of  the  surest  foundation  of  our  national 
republic,  and  that  the  system  they  adopted  has  not,  in  regard  to 
senators,  worked  well  —  that  the  senators  have  not  been  the 
choice  of,  and  have  not  represented,  the  great  body  of  the  people 
of  the  States  that  elected  them  and  therefore  that  elections  of  sena- 
tors should  be  had  by  the  suffrage  of  all  the  voters  in  the  State 
acting  together. 

One  test  of  the  truth  of  the  first  statement  is  the  fact  that  of  the 
less  than  900  persons  who  have  served  as  senators  since  the  govern- 
ment was  organized  in  1789,  more  than  200  have  been  members 
of  the  House  of  Representatives  —  substantially  one  fourth. 
Only  two  States  —  Montana  and  Nevada  —  have  not  thus  been 
represented,  while  more  than  one  half  of  the  senators  from  Massa- 
chusetts, Connecticut,  Indiana,  and  Maine,  have  been  members 
of  the  House  of  Representatives ;  and  in  addition  to  these,  a  very 
large  fraction  of  the  senators  have  been  governors  and  judges  elected 
by  the  people  in  their  States.  These  facts  show  that  it  has  been 
almost  universally  true  that  those  chosen  as  senators  have  possessed 
the  confidence,  not  only  of  the  legislative  representatives  of  political 
divisions  of  the  States,  but  of  the  whole  body  of  the  people  as  well. 

The  second  part  of  the  assertion  of  the  persons  who  have  seen  a 
new  light,  as  they  think,  is  that  sometimes  "senators  do  not  rep- 
resent their  States."  This  is  true;  but  happily  for  all  the  States 
and  their  people,  a  senator,  once  chosen,  becomes  a  senator  of  the 
United  States,  and  is  not  a  mere  agent  of  the  State  that  chose  him. 
And,  as  to  the  State  itself  that  chose  him,  it  has  happened,  and  will 
happen  again,  that  a  gust  of  passion  or  a  misguided  opinion  has 
taken  temporary  possession  of  a  majority  of  the  people  of  a  partic- 
ular State  which  the  senator,  in  his  bounden  duty  to  all  the  States, 
has  disregarded.  This  was  one  of  the  very  incidents  that  the 
patriots  of  1787  foresaw  and  provided  against  by  legislative  elec- 
tions and  a  long  time  of  service. 


The  Congress  of  the  United  States  23 1 

Again,  the  new  school  of  constitution-makers  say  that  they  think  The 

,       1        r    •    ,  1  •        1     1     •        1  charge  of 

the  Senate  has  become  a  body  of  rich  men  who  gamed  their  places  corruption 
by  corrupting  legislatures  in  a  pecuniary  way.  But  to  any  one  ac-  considered, 
quainted  with  the  personality  of  the  Senate  as  it  has  existed  for  a 
generation  and  is  now,  such  a  statement  is  known  to  be  absolutely 
destitute  of  foundation.  The  proportion  of  rich  men  in  the  Senate 
is  not  greater  than  that  which  exists  in  every  State  and  community 
in  the  whole  country  where  the  honors  and  responsibiHties  of  public 
office  are  shared  aUke  by  the  rich,  the  comfortable,  and  the  poor. 
As  a  perfect  millennium  has  not  yet  been  reached,  it  is  doubtless 
true  that  some  (but  very  few)  men  have  secured  election  as  senators 
by  pecuniary  persuasions,  or,  to  put  it  roughly,  have  "  bought  their 
places"  with  money,  —  a  crime  of  the  worst  character  both  in  the 
buyer  and  in  the  seller.  But  alas,  this  is  not  a  pecuHarity  belong- 
ing to  the  office  of  senator  alone.  It  has  happened  equally  or 
more  often  in  elections  to  the  House  of  Representatives,  as  well  as  in 
State  and  municipal  elections.  A  legislative  election  of  senators, 
therefore,  is  not  the  cause  of  this  great  evil.  In  the  nature  of  things, 
it  must  be  worse  in  popular  elections,  for  the  members  of  a  legis- 
lature must,  in  the  choice  of  the  senator,  vote  openly,  so  that  the 
constituents  know  whether  or  not  their  representatives  have  followed 
the  general  judgment  of  the  particular  communities  they  represent, 
—  a  matter  of  vital  importance  in  all  representative  government. 
But  in  popular  elections,  where  each  citizen  is  acting  in  his  per- 
sonal character  only,  it  is  equally  important  that  he  have  the  right 
to  vote  secretly,  notwithstanding  that  he  may  be  bribed  in  spite 
of  every  precaution  that  the  law  may  adopt  to  prevent  it.  And 
when  we  go  back  of  the  regular  act  of  a  government  election  and 
reach  the  "primaries"  and  the  district,  the  county  and  State  con- 
ventions, all  barriers  and  safeguards  are  left  behind,  and  the 
corruptions  of  riches  and  still  more  of  trading  machines  and  office 
brokerage,  have  their  easiest  and  most  abundant  field  of  achieve- 
ment in  selecting  candidates.  To  cite  examples  to  the  intelligent 
reader  would  be  a  waste  of  time. 

The  real  people  of  this  republic  of  States  and  citizens  —  those 


232  American   Government  and   Politics 

Arguments      who  believe  in  liberty  and  order  as  inseparable,  who  believe  in  the 


for  those 
who  believe 


value  of  individual  endeavor  and  frugality,  and,  as  a  consequence, 
in  order  and  in  the  right  to  save  earnings  and  to  have  homes  and  houses  and 
property.        lands  and  schools  and  churches  —  should  consider:  — 

First,  that  the  Constitutional  provision  for  the  choosing  of  two 
senators  from  each  State  by  its  legislature  was  wisely  designed  by 
the  States  that  founded  the  government,  as  one  of  the  corner-stones 
of  the  structure  necessary  to  secure  the  rights  and  safety  of  the 
States. 

Second,  that  a  legislative  instead  of  a  popular  election  was 
adopted  as  necessary  to  the  expression  of  the  deliberate  will  of  the 
State  in  its  character  as  such,  represented  in  all  its  parts  in  the  way 
in  which  its  own  constitution  distributed  power. 

TJiird,  that  the  people  of  the  several  political  divisions  of  the  State 
should  have  the  right  to  express  their  choice  separately  through 
their  legal  representatives,  as  they  do  in  making  laws,  and  not  be 
overwhelmed  by  a  mere  weight  of  numbers  that  might  occupy  only 
a  corner  of  the  State  and  possess  interests  and  cherish  ambitions 
quite  unlike  those  of  all  the  other  sections  of  the  commonwealth. 

Fourth,  that  the  Senate  as  it  has  existed  for  a  century  has  dem- 
onstrated the  wisdom  of  the  mode  of  its  constitution. 

Fifth,  that  its  members  have  been  as  free  from  any  just  accusa- 
tion of  corruption,  either  in  their  election  or  in  their  course  as  sena- 
tors, as  any  equal  number  of  men  connected  with  public  affairs  on 
the  face  of  the  earth,  or  connected  with  all  the  employments  of 
private  life. 

Sixth,  that  as  the  election  of  senators  by  the  State  legislatures 
must  be  by  open  public  voting,  the  danger  of  bribery,  or  the  mis- 
representation of  constituents  for  other  causes,  is  reduced  to  a 
minimum,  and  stands  in  strong  contrast  with  the  election  of  sena- 
tors by  the  direct  vote  of  the  whole  mass  of  voters  in  the  several 
States,  and  especially  in  States  where  political  parties  are  nearly 
equal  in  numbers. 

Seventh,  that,  whatever  evils  now  and  then  happen  under  the  pres- 
ent system,  they  do  not  arise  from  any  fault  in  the  system  itself, 


The  Congress  of  the   United  States  233 

but  from  the  fault  of  the  body  of  citizens  themselves,  —  non-attend- 
ance at  caucuses  and  primaries;  non-attendance  at  registration 
and  at  the  polls;  slavish  fidelity  to  party  organizations  and  party 
names ;  a  contributing  to  and  winking  at  the  corrupt  use  of  money 
at  nominating  conventions  and  elections;  and  the  encourage- 
ment or  tolerance  of  individual  self-seeking  in  respect  of  getting 
possession  of  offices,  all  of  which  are  truly  public  trusts. 

Eighth,  that  in  ninety-five  instances  out  of  a  hundred,  if  there  be 
an  evil  or  inadequate  senator  or  other  officer  in  the  public  service,  it 
is  because  the  power  that  elected  or  appointed  him  —  his  State  or 
community  —  has  been  either  grievously  negligent  or  else  is  fairly 
represented.  We  must  believe  that  the  people's  government  is  a 
failure  and  a  delusion,  to  think  otherwise. 

Ninth,  and  finally,  there  is  neither  reasonable  nor  plausible 
ground  then,  for  taking  the  grave  step  of  disturbing  the  exact  and 
solid  balance  of  the  powers  and  functions  of  our  national  Con- 
stitution, which  has  in  these  respects  given  us  a  century  of  security, 
of  State  representation,  and  of  State  rights,  as  well  as  a  wonderful 
national  progress  as  a  people. 

95.    The  Instruction  of  Representatives  in  Congress 

It  is  a  principle  of  our  constitutional  law  that  Senators  and  Repre- 
sentatives are  not  to  be  instructed  by  their  constituents,*  but  this 
principle  is  constantly  violated  in  practice  by  state  legislatures  in 
passing  resolutions  similar  in  form  to  this  resolution  adopted  by 
Missouri  in  1885. 

Joint  and  concurrent  resolution  instructing  our  Senators  and  re- 
questing our  Representatives  in  Congress  to  procure  legis- 
lation authorising  receivers  of  railroad  companies  appointed  by 
Federal  courts  to  be  sued  in  local  State  courts,  and  preserve 
the  right  of  trial  by  jury  in  such  suits. 

Whereas  the  circuit  courts  of  the  United  States,  in  the  exercise 
of  their  powers  as  courts  of  equity  jurisdiction,   have,   of  late, 

*  Burgess,  Political  Science  and  Constitutional  Laiv,  II,  p.  50. 


234  American   Government  and   Politics 

adopted  the  extraordinary  practice  of  taking  charge  of  and  for 
years  operating  and  managing  railroads,  oftentimes  embracing  a 
system  of  roads  hundreds  of  miles  in  length  and  extending  into 
different  and  distinct  States.  .  .  . 

Be  it  resolved  by  the  house  of  representatives  {the  senate  concur- 
ring therein),  That  our  Senators  in  Congress  be  instructed  and  our 
Representatives  requested,  to  procure  such  legislation  as  shall 
be  necessary  to  secure  to  all  persons  the  right  to  sue  receivers  of 
railroad  companies  appointed  by  Federal  courts  in  places  and 
courts  of  the  States,  and  to  prosecute  to  judgment,  under  the  same 
form  of  law  as  is  provided  by  State  laws  for  suits  against  the  com- 
panies, and  for  such  further  legislation  therein  as  will  properly 
regulate  and  limit  the  powers  of  the  Federal  courts  in  their  equitable 
interference  with  and  control  over  railroad  companies,  so  as  to 
preserve  to  the  people  their  common  law  and  constitutional  rights. 
Approved  March  19,  1885. 

Henry  Clay  thus  committed  himself  to  the  doctrine  that  repre- 
sentatives were  ordinarily  bound  by  instructions  from  their 
constituents. 

What  is  the  basis,  and  what  the  principle  of  the  doctrine  of 
instruction?  Sir,  to  a  certain  extent,  I  have  always  believed  in 
this  doctrine,  and  have  been  ever  ready  to  conform  to  it.  But  I 
hold  to  the  doctrine  as  it  stood  in  1789;  that,  in  general,  on  ques- 
tions of  expediency,  the  representative  should  conform  to  his 
instructions,  and  so  gratify  the  wishes,  and  obey  the  will,  of  his 
constituents,  though  on  questions  of  constitutionality  his  course 
might  be  different;  and,  therefore,  when  the  senator  last  up  (Mr. 
Strange)  declared  that  he  would  rather  submit  to  a  certain  opera- 
tion, than  to  give  his  vote  declaring  that  there  had  been  a  violation 
of  the  Constitution,  I  felt  some  alarm,  lest  the  true  doctrine  of 
instruction  should  itself  be  subverted.  And  it  did  not  appear  to 
occur  to  him  at  the  time,  that  there  was  another  alternative  besides 
obeying,  —  that  is,  to  resign. 

And  what  is  the  doctrine  of  instruction,  as  it  is  held  by  all? 


The  Congress  of  the  United  States  235 

Is  it  not  that  we  are  to  conform  to  the  wishes  of  our  constituents  ?   Senators  to 
Is  it  not  that  we  are  to  act,  not  in  our  own,  but  in  a  delegated   constUuenTs^ 
character  ?     And  will  any  who  stand  here,  pretend,  that  whenever  will. 
they  know  the  wishes  or  will  of  those  who  sent  them  here,  they  are 
not  bound  to  conform  to  that  will  entirely?     Is  it  not  the  doctrine, 
that  we  are  nothing  more  than  the  mirror  to  reflect  the  will  of  those 
who  called  us  to  our  dignified  office  ?     That  is  the  view  which  I 
take  of  the  doctrine  of  instruction. 


CHAPTER   XIII 


THE    POWERS    OF    CONGRESS 


96.   Express  Powers  Conferred  upon  Congress  by  the  Constitution 

The  Congress  shall  have  power: 
Section  VIII  i.    To  lay  and  collect  taxes,  duties,  imposts,  and  exxises,  to  pay 

federal  ^^^^  debts  and  provide  for  the  common  defense  and  general  welfare 

Constitution,    of  the  United  States;   but  all  duties,  imposts,  and  excises  shall  be 
uniform  throughout  the  United  States; 

2.  To  borrow  money  on  the  credit  of  the  United  States; 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes; 

4.  To  establish  a  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United  States ; 

5.  To  coin  money,  regulate  the  value  thereof  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures ; 

6.  To  provide  for  the  punishment  of  counterfeiting  the  secu- 
rities and  current  coin  of  the  United  States; 

7.  To  establish  post-offices  and  post-roads ; 

8.  To  promote  the  progress  of  science  and  useful  arts,  by  se- 
curing for  limited  times  to  authors  and  inventors  the  exclusive 
right  to  their  respective  writings  and  discoveries; 

9.  To  constitute  tribunals  inferior  to  the  Supreme  Court; 

10.  To  define  and  punish  felonies  committed  on  the  high  seas, 
and  offenses  against  the  law  of  nations; 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water; 

1 2.  To  raise  and  support  armies ;  but  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years; 

13.  To  provide  and  maintain  a  navy ; 

236 


The   Powers  of  Congress  237 

14.  To  make  rules  for  the  government  and  regulation  of  land 
and  naval  forces; 

15.  To  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  Union,  suppress  insurrections,  and  repel  invasions ; 

16.  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  employed 
in  the  service  of  the  United  States,  reserving  to  the  States  respec- 
tively the  appointment  of  the  officers,  and  the  authority  of  training 
the  militia  according  to  the  discipUne  prescribed  by  Congress; 

17.  To  exercise  exclusive  legislation,  in  all  cases  whatsoever, 
over  such  district  (not  exceeding  ten  miles  square)  as  may,  by 
cession  of  particular  states  and  the  acceptance  of  Congress,  become 
the  seat  of  government  of  the  United  States,  and  to  exercise  like 
authority  over  all  places  purchased,  by  the  consent  of  the  Legis- 
lature of  the  State  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dock-yards,  and  other  needful  buildings; 
and, 

18.  To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  office  thereof. 

97.    The  Doctrine  of  Strict  Construction 

The  method  of  reasoning  employed  by  those  who  would  restrict 
the  powers  of  Congress  to  the  plain  letter  of  the  law  is  illustrated 
in  the  following  paper  by  Jefferson,  in  which  he  strove  to  show  the 
unconstitutionality  of  the  proposition  to  establish  a  national  bank.' 

I  consider  the  foundation  of  the  Constitution  as  laid  on  this  The  first 
ground:   That  "all  powers  not  delegated  to  the  United  States,  by  of 'the 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to    Constitution. 
the  States  or  to  the  people."     (Xllth  amendment.)    To  take  a 
single  step  beyond  the  boundaries  thus  specially  drawn  around  the 
powers  of  Congress,  is  to  take  possession  of  a  boundless  field  of 
power,  no  longer  susceptible  of  any  definition. 

*  See  above,  p.  63. 


238 


American   Government  and   Politics 


The  incorporation  of  a  bank,  and  the  powers  assumed  by  this 
bill,  have  not,  in  my  opinion,  been  delegated  to  the  United  States, 
by  the  Constitution. 

I.  They  are  not  among  the  powers  specially  enumerated:  for 
these  are: 

ist.  A  power  to  lay  taxes  for  the  purpose  of  paying  the  debts  of 
the  United  States ;  but  no  debt  is  paid  by  this  bill,  nor  any  tax  laid. 
Were  it  a  bill  to  raise  money,  its  origination  in  the  Senate  would 
condemn  it  by  the  Constitution. 

2d.  "To  borrow  money."  But  this  bill  neither  borrows  money 
nor  ensures  the  borrowing  of  it.  The  proprietors  of  the  bank  will 
be  just  as  free  as  any  other  money  holders,  to  lend  or  not  to  lend 
their  money  to  the  public.  The  operation  proposed  in  the  bill, 
first,  to  lend  them  two  millions,  and  then  to  borrow  them  back 
again,  cannot  change  the  nature  of  the  latter  act,  which  will  still 
be  a  payment,  and  not  a  loan,  call  it  by  what  name  you  please. 

3d.  To  "  regulate  commerce  with  foreign  nations,  and  among  the 
States,  and  with  the  Indian  tribes."  To  erect  a  bank,  and  to 
regulate  commerce,  are  very  different  acts.  He  who  erects  a  bank, 
creates  a  subject  of  commerce  in  its  bills ;  so  does  he  who  makes  a 
bushel  of  wheat,  or  digs  a  dollar  out  of  the  mines ;  yet  neither  of 
these  persons  regulates  commerce  thereby.  To  make  a  thing  which 
may  be  bought  or  sold,  is  not  to  prescribe  regulations  for  buying 
and  selling.  Besides,  if  this  was  an  exercise  of  the  power  of  regu- 
lating commerce,  it  would  be  void,  as  extending  as  much  to  the 
internal  commerce  of  every  State,  as  to  its  external.  For  the  power 
given  to  Congress  by  the  Constitution  does  not  extend  to  the  in- 
ternal regulation  of  the  commerce  of  a  State,  (that  is  to  say  of  the 
commerce  between  citizen  and  citizen,)  which  remain  exclusively 
vsdth  its  own  legislature;  but  to  its  external  commerce  only,  that  is 
to  say,  its  commerce  with  another  State,  or  with  foreign  nations,  or 
with  the  Indian  tribes.  Accordingly  the  bill  does  not  propose  the 
measure  as  a  regulation  of  trade,  but  as  "  productive  of  consider- 
able advantages  to  trade."  Still  less  are  these  powers  covered  by 
any  other  of  the  special  enumerations. 


The  Powers  of  Congress  239 

II.  Nor  are  they  within  either  of  the  general  phrases,  which  are   Jhe 

the  two  following:  —  welfare" 

1 .  To  lay  taxes  to  provide  for  the  general  welfare  of  the  United   clause 
States,  that  is  to  say,  "  to  lay  taxes  for  the  purpose  of  providing  for 

the  general  welfare."  For  the  laying  of  taxes  is  the  power,  and  the 
general  welfare  the  purpose  for  which  the  power  is  to  be  exercised. 
They  are  not  to  lay  taxes  ad  libitum  for  any  purpose  they  please; 
but  only  to  pay  the  debts  or  provide  for  the  welfare  of  the  Union. 
In  like  manner,  they  are  not  to  do  anything  they  please  to  provide 
for  the  general  welfare,  but  only  to  lay  taxes  for  that  purpose.  To 
consider  the  latter  phrase,  not  as  describing  the  purpose  of  the  first, 
but  as  giving  a  distinct  and  independent  power  to  do  any  act  they 
please,  which  might  be  for  the  good  of  the  Union,  would  render  all 
the  preceding  and  subsequent  enumerations  of  power  completely 
useless.  It  would  reduce  the  whole  instrument  to  a  single  phrase, 
that  of  instituting  a  Congress  with  power  to  do  whatever  would  be 
for  the  good  of  the  United  States ;  and,  as  they  would  be  the  sole 
judges  of  the  good  or  evil,  it  would  be  also  a  power  to  do  whatever 
evil  they  please  .  .  . 

2.  The  second  general  phrase  is,  "to  make  all  laws  necessary  The 

and  proper  for  carrying  into  execution  the  enumerated  powers."   and^^proper'* 
But  they  can  all  be  carried  into  execution  without  a  bank.     A  bank   clause 
therefore  is  not  necessary,  and  consequently  not  authorized  by  this 
phrase. 

It  has  been  urged  that  a  bank  will  give  great  facility  or  con- 
venience in  the  collection  of  taxes.  Suppose  this  were  true;  yet 
the  Constitution  allows  only  the  means  which  are  "necessary" 
not  those  which  are  merely  "convenient"  for  effecting  the  enumer- 
ated powers.  If  such  a  latitude  of  construction  be  allowed  to  this 
phrase  as  to  give  any  non-enumerated  power,  it  will  go  to  every  one, 
for  there  is  not  one  which  ingenuity  may  not  torture  into  a  con- 
venience in  some  instance  or  other,  to  some  one  of  so  long  a  list  of 
enumerated  powers.  It  would  swallow  up  all  the  delegated 
powers,  and  reduce  the  whole  to  one  power,  as  before  observed. 
Therefore  it  was  that  the  Constitution  restrained  them  to    the 


examined. 


240 


American   Government  and  Politics 


necessary  means,  that  is  to  say,  to  those  means  without  which  the 
grant  of  power  would  be  nugatory. 


98.    The  Doctrine  of  Liberal  Construction 

Chief  Justice  Marshall,  in  the  case  of  Gibbons  v.  Ogden,  made 
the  following  reflections  on  the  principle  of  strict  construction,  and 
stated  his  reasons  for  refusing  to  adopt  it. 

This  instrument  contains  an  enumeration  of  the  powers  ex- 
pressly granted  by  the  people  to  their  government.  It  has  been 
said  that  these  powers  ought  to  be  construed  strictly.  But  why 
ought  they  to  be  so  construed  ?  Is  there  one  sentence  in  the  Con- 
stitution which  gives  countenance  to  this  rule  ?  In  the  last  of  the 
enumerated  powers,  that  which  grants  expressly  the  means  for 
carrying  all  others  into  execution.  Congress  is  authorized  "to 
make  all  laws  which  shall  be  necessary  and  proper"  for  the  pur- 
pose. But  this  limitation  on  the  means  which  may  be  used  is  not 
extended  to  the  powers  which  are  conferred;  nor  is  there  one 
sentence  in  the  Constitution  which  has  been  pointed  out  by  the 
gentlemen  of  the  bar,  or  which  we  have  been  able  to  discern,  that 
prescribes  this  rule.  We  do  not,  therefore,  think  ourselves  justified 
in  adopting  it. 

What  do  gentlemen  mean  by  strict  construction  ?  If  they  con- 
tend only  against  that  enlarged  construction  which  would  extend 
words  beyond  their  natural  and  obvious  import,  we  might  question 
the  application  of  the  terms,  but  should  not  controvert  the  principle. 
If  they  contend  for  that  narrow  construction  which,  in  support  of 
some  theory  not  to  be  found  in  the  Constitution,  would  deny  to  the 
government  those  powers  which  the  words  of  the  grant,  as  usually 
understood,  import,  and  which  are  consistent  with  the  general 
views  and  objects  of  that  instrument,  —  for  that  narrow  construc- 
tion which  would  cripple  the  government  and  render  it  unequal  to 
the  objects  for  which  it  is  declared  to  be  instituted,  and  to  which 
the  powers  given,  as  fairly  understood,  render  it  competent,  — 
then  we  cannot  perceive  the  propriety  of  this  strict  construction, 


The   Powers   of  Congress 


241 


nor  adopt  it  as  the  rule  by  which  the  Constitution  is  to  be  ex- 
pounded. As  men  whose  intentions  require  no  concealment  gen- 
erally employ  the  words  which  most  directly  and  aptly  express  the 
ideas  which  they  intend  to  convey,  the  enlightened  patriots  who 
framed  our  Constitution  and  the  people  who  adopted  it  must  be 
understood  to  have  employed  words  in  their  natural  sense,  and  to 
have  intended  what  they  have  said.  If,  from  the  imperfections  of 
human  language,  there  should  be  serious  doubts  respecting  the 
extent  of  any  given  power,  it  is  a  well-settled  rule  that  the  objects 
for  which  it  was  given,  especially  when  those  objects  are  expressed 
in  the  instrument  itself,  should  have  great  influence  in  the  construc- 
tion. 


99.    The  Principle  of  Liberal  Construction  Applied"^ 

In  upholding  the  doctrine  that  Congress  had  an  impHed  power 
to  create  paper  money  even  in  the  absence  of  any  express  provision 
to  that  effect,  the  Supreme  Court  laid  down  this  basis  for  a  liberal 
interpretation :  — 

When  investigating  the  nature  and  extent  of  the  powers  con- 
ferred by  the  Constitution  upon  Congress,  it  is  indispensable  to 
keep  in  view  the  objects  for  which  those  powers  were  granted. 
This  is  a  universal  rule  of  construction  applied  alike  to  statutes, 
wills,  contracts,  and  constitutions.  If  the  general  purpose  of  the 
instrument  is  ascertained,  the  language  of  its  provisions  must  be 
construed  with  reference  to  that  purpose,  and  so  as  to  subserve  it. 
In  no  other  way  can  the  intent  of  the  framers  of  the  instrument  be 
discovered.  And  there  are  more  urgent  reasons  for  looking  to  the 
ultimate  purpose  in  examining  the  powers  conferred  by  a  constitu- 
tion than  there  are  in  construing  a  statute,  a  will,  or  a  contract. 
We  do  not  expect  to  find  in  a  constitution  minute  details.  It  is 
necessarily  brief  and  comprehensive. 

It  prescribes  outlines,  leaving  the  filling  up  to  be  deduced  from 
the  outlines.  In  Martin  v.  Hunter,  i  Wheaton  326,  it  was  said, 
"  The  Constitution  unavoidably  deals  in  general  language.  It  did 
not  suit  the  purpose  of  the  people  in  framing  this  great  charter  of 


The 
general 
intent  of 
the  framers 
to  be 

discovered 
first. 


The 

Constitution 
is  only  an 
outline  of 
the  govern- 
ment. 


242 


American   Government  and   Politics 


Clauses 
may  be 
grouped 
and  infer- 
ences drawn. 


our  liberties  to  provide  for  minute  specifications  of  its  powers,  or 
to  declare  the  means  by  which  those  powers  should  be  carried  into 
execution."  And  with  singular  clearness  was  it  said  by  Chief 
Justice  Marshall,  in  M'Culloch  v.  The  State  of  Maryland,  4  Id. 
405,  "A  constitution,  to  contain  an  accurate  detail  of  all  the  sub- 
divisions of  which  its  great  powers  will  admit,  and  of  all  the  means 
by  which  it  may  be  carried  into  execution,  would  partake  of  the 
prolixity  of  a  political  code,  and  would  scarcely  be  embraced  by  the 
human  mind.  It  would  probably  never  be  understood  by  the 
public.  Its  nature  therefore,  requires  that  only  its  great  outlines 
should  be  marked,  its  important  objects  designated,  and  the  minor 
ingredients  which  compose  those  objects  be  deduced  from  the 
nature  of  the  objects  themselves." 

If  these  are  correct  principles,  if  they  are  proper  views  of  the 
manner  in  which  the  Constitution  is  to  be  understood,  the  powers 
conferred  upon  Congress  must  be  regarded  as  related  to  each  other, 
and  all  means  for  a  common  end.  Each  is  but  part  of  a  system,  a 
constituent  of  one  whole.  No  single  power  is  the  ultimate  end  for 
which  the  Constitution  was  adopted.  It  may,  in  a  very  proper 
sense,  be  treated  as  a  means  for  the  accomplishment  of  a  subor- 
dinate object,  but  that  object  is  itself  a  means  designed  for  an 
ulterior  purpose.  Thus  the  power  to  levy  and  collect  taxes,  to  coin 
money  and  regulate  its  value,  to  raise  and  support  armies,  or  to 
provide  for  and  maintain  a  navy,  are  instruments  for  the  para- 
mount object,  which  was  to  establish  a  government,  sovereign 
within  its  sphere,  AAath  capability  of  self-preservation,  thereby 
forming  a  union  more  perfect  than  that  which  existed  under  the 
old  Confederacy.  .  .  . 

And  here  it  is  to  be  observed  it  is  not  indispensable  to  the  exist- 
ence of  any  power  claimed  for  the  Federal  government  that  it  can 
be  found  specified  in  the  words  of  the  Constitution,  or  clearly  and 
directly  traceable  to  some  one  of  the  specified  powers.  Its  exist- 
ence may  be  deduced  fairly  from  more  than  one  of  the  substantive 
powers  expressly  defined,  or  from  them  all  combined.  It  is  allow- 
able to  group  together  any  number  of  them  and  infer  from  them  all 


The  Powers  of  Congress  243 

that  the  power  claimed  has  been  conferred.  Such  a  treatment  of 
the  Constitution  is  recognized  by  its  own  provisions.  This  is  well 
illustrated  in  its  language  respecting  the  writ  oi  habeas  corpus. 
The  power  to  suspend  the  privilege  of  that  writ  is  not  expressly 
given,  nor  can  it  be  deduced  from  any  one  of  the  particularized 
grants  of  power.  Yet  it  is  provided  that  the  privileges  of  the  writ 
shall  not  be  suspended  except  in  certain  defined  contingencies. 
This  is  no  express  grant  of  power.  It  is  a  restriction.  But  it 
shows  irresistibly  that  somewhere  in  the  Constitution  power  to 
suspend  the  privilege  of  the  writ  was  granted,  either  by  some  one 
or  more  of  the  specifications  of  power,  or  by  them  all  combined. 

And,  that  important  powers  were  understood  by  the  people  who  The 
adopted  the  Constitution  to  have  been  created  by  it,  powers  not   amend- 
enumerated,  and  not  included  incidentally  in  any  one  of  those   ments  show 
enumerated,  is  shown  by  the  amendments.     The  first  ten  of  these   ^^  general 
were  suggested  in  the  conventions  of  the  States,  and  proposed  at  the   powers  in 
first  session  of  the  first  Congress,  before  any  complaint  was  made  of   constUudon 
a  disposition  to  assume  doubtful  powers.     The  preamble  to  the 
resolution  submitting  them  for  adoption  recited  that  the  "  conven- 
tions of  a  number  of  the  States  had,  at  the  time  of  their  adopting 
the  Constitution,  expressed  a  desire,  in  order  to  prevent  miscon- 
struction or  abuse  of  its  powers,  that  further  declaratory  and  re- 
strictive clauses  should  be  added."     This  was  the  origin  of  the 
amendments,  and  they  are  significant.     They  tend  plainly  to  show 
that,  in  the  judgment  of  those  who  adopted  the  Constitution,  there 
were  powers  created  by  it,  neither  expressly  specified  nor  dedu- 
cible  from  any  one  specified  power,  or  ancillary  to  it  alone,  but  which 
grew  out  of  the  aggregate  of  powers  conferred  upon  the  govern- 
ment, or  out  of  the  sovereignty  instituted.     Most  of  these  amend- 
ments are  denials  of  power  which  had  not  been  expressly  granted, 
and  which  cannot  be  said  to  have  been  necessary  and  proper  for 
carrying  into  execution  any  other  powers.     Such,  for  example,  is 
the  prohibition  of  any  laws  respecting  the  establishment  of  re- 
ligion, prohibiting  the  free  exercise  thereof,  or  abridging  the  free- 
dom of  speech  or  of  the  press. 


244 


American  Government  and  Politics 


How- 
Congress  has 
exercised 
powers  not 
expressly 
conferred. 


And  it  is  of  importance  to  observe  that  Congress  has  often  exer- 
cised, without  question,  powers  that  are  not  expressly  given  nor 
ancillary  to  any  single  enumerated  power.  Powers  thus  exer- 
cised are  what  are  called  by  Judge  Story,  in  his  Commentaries  on  tlie 
Constitution,  resulting  powers,  arising  from  the  aggregate  powers 
of  the  government.  He  instances  the  right  to  sue  and  make  con- 
tracts. Many  others  might  be  given.  The  oath  required  by  law 
from  officers  of  the  government  is  one.  So  is  building  a  capitol  or 
a  presidential  mansion,  and  so  also  is  the  penal  code.  This  last 
is  worthy  of  brief  notice.  Congress  is  expressly  authorized  "to 
provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States,  and  to  define  and  punish  piracies 
and  felonies  committed  on  the  high  seas  and  offences  against  the 
laws  of  nations."  It  is  also  empowered  to  declare  the  punish- 
ment of  treason,  and  provision  is  made  for  impeachment.  This 
is  the  extent  of  power  to  punish  crime  expressly  conferred.  It 
might  be  argued  that  the  expression  of  these  limited  powers  im- 
pHes  an  exclusion  of  all  other  subjects  of  criminal  legislation. 
Yet  Congress,  by  the  Act  of  April  30,  1790,  entitled  "  An  Act  more 
effectually  to  provide  for  the  punishment  of  certain  crimes  against 
the  United  States,"  and  a  supplementary  act  of  March  3,  1825, 
defined  and  provided  for  the  punishment  of  a  large  class  of  crimes 
other  than  those  mentioned  in  the  constitution,  and  some  of  the 
punishments  prescribed  are  manifestly  not  in  aid  of  any  single  sub- 
stantive power.  No  one  doubts  that  this  was  rightfully  done, 
and  the  power  thus  exercised,  has  been  affirmed  by  this  court  in 
United  States  z'.  Marigold,  9  How.  560.  This  case  shows  that  a 
power  may  exist  as  an  aid  to  the  execution  of  an  express  power,  or 
an  aggregate  of  such  powers,  though  there  is  another  express  power 
given  relating  in  part  to  the  same  subject  but  less  extensive.  An- 
other illustration  of  this  may  be  found  in  connection  with  the  pro- 
visions respecting  a  census.  The  Constitution  orders  an  enumera- 
tion of  free  persons  in  the  different  States  every  ten  years.  The 
direction  extends  no  further.  Yet  Congress  has  repeatedly  di- 
rected an  enumeration  not  only  of  free  persons  in  the  States,  but  of 


The  Powers  of  Congress 


245 


free  persons  in  the  Territories,  and  not  only  an  enumeration  of 
persons,  but  the  collection  of  statistics  respecting  age,  sex,  and  pro- 
duction.    Who  questions  the  power  to  do  this? 

Under  the  power  to  establish  post-offices  and  post-roads  Con- 
gress has  provided  for  carrying  the  mails,  punishing  theft  of  letters 
and  mail  robberies,  and  even  for  transporting  the  mails  to  foreign 
countries.  Under  the  power  to  regulate  commerce,  provision  has 
been  made  by  law  for  the  improvement  of  harbors,  the  establish- 
ment of  observatories,  the  erection  of  lighthouses,  breakwaters, 
and  buoys,  the  registry,  enrollment,  and  construction  of  ships,  and 
a  code  has  been  enacted  for  the  government  of  seamen.  Under 
the  same  power,  and  other  powers  over  the  revenue  and  the  cur- 
rency of  the  country,  for  the  convenience  of  the  treasury  and  in- 
ternal commerce,  a  corporation  known  as  the  United  States  bank 
was  early  created. 


100.    The  ^^ Necessary  and  Proper"  Clause* 

The  Constitution  authorizes  Congress  to  make  all  laws  "neces- 
sary and  proper"  for  carrying  into  effect  the  express  powers  con- 
ferred upon  it.  This  clause  has  received  the  following  judicial 
interpretation :  — 

By  the  settled  construction  and  the  only  reasonable  interpreta-  Absolute 
tion  of  this  clause,  the  words  "necessary  and  proper"  arc  not  "0*^^^' \  h 
limited  to  such  measures  as  are  absolutely  and  indispensably 
necessary,  without  which  the  powers  granted  must  fail  of  execu- 
tion; but  they  include  all  appropriate  means  which  are  conducive 
or  adapted  to  the  end  to  be  accomplished,  and  which  in  the  judg- 
ment of  Congress  will  most  advantageously  effect  it. 

Chief  Justice  Marshall  expounded  the  clause  giving  Congress   Congress 
power  to  make  all  necessary  and  proper  laws,  as  follows:    "In    ,™c  (-hoice 
construing  this  clause,  it  would  be  incorrect,  and  would  produce   of  means. 
endless  difficulties,  if  the  opinion  should  be  maintained  that  no  law 
was  authorized  which  was  not  indispensably  necessary  to  give 
effect  to  a  specified  power.     Where  various  systems  might  be 


246  American  Government  and  Politics 

adopted  for  that  purpose,  it  might  be  said  with  respect  to  each, 
that  it  was  not  necessary,  because  the  end  might  be  obtained  by 
other  means.  Congress  must  possess  the  choice  of  means,  and 
must  be  empowered  to  use  any  means  which  are  in  fact  conducive 
to  the  exercise  of  a  power  granted  by  the  Constitution.  The  gov- 
ernment is  to  pay  the  debt  of  the  Union,  and  must  be  authorized 
to  use  the  means  which  appear  to  itself  the  most  eligible  to  effect 
that  object."     2   Cranch,  396. 


CHAPTER  XIV 

CONGRESS   AT   WORK 

loi.  Party  Organization  in  Congress* 

Nowhere  have  party  machinery  and  methods  twisted  and 
warped  the  original  theories  of  the  Constitution  more  than  in  the 
conduct  of  business  in  Congress.  Back  of  the  formal  organization 
of  the  House  and  Senate  is  the  organization  of  the  representatives 
of  the  two  great  parties  into  caucuses  in  which  officers  are  chosen 
and  policies  are  determined  by  vote.  The  party  practices  and 
the  principles  involved  are  thus  discussed  by  Senators  Patterson 
and  Bailey  in  a  spirited  debate  over  the  right  of  the  Democrats  in 
the  Senate  to  bind  party  members  by  a  caucus  rule :  — 

The  Senate  proceeded  to  consider  the  resolution  submitted  by 
Mr.  Patterson  on  the  fifth  instant,  as  follows: 

....  Whereas,  because  it  was  currently  reported  that  one  or  more 
Democratic  Senators  might  vote  upon  certain  matters  pending  before 
the  Senate  contrary  to  the  views  of  a  majority  of  the  body  of  Democratic 
Senators,  the  Democratic  Senators  were  called  to  caucus  upon  such 
matters;    and 

Whereas,  it  was  found  at  such  caucus  that  said  reports  were  correct 
asd  that  certain  Democratic  Senators  might  or  would  vote  contrary  to 
the  views  of  said  majority;    and 

Whereas,  thereupon  the  following  resolutions  were  presented  and 
adopted  by  more  than  two-thirds  of  the  Senators  present  at  said  caucus, 

''Resolved,  that  the  Senate  ought  not  to  advise  and  consent  to  the 
treaty  between  the  United  States  and  the  Republic  of  Santo  Domingo, 
now  pending  before  the  Senate. 

"■Resolved,  That  if  two-thirds  of  this  caucus  shall  vote  in  favor  of  the 
foregoing  resolution,  it  shall  be  the  duty  of  every  Democratic  Senator  to 
vote  against  the  ratification  of  the  said  treaty;  "   and 

Whereas  the  apparent  purpose  of  the  said  resolutions  and  action  was 
to  improperly  induce  or  coerce  Democratic  Senators  who  might  believe 
that  the  best  interests  of  the  country  required  the  ratification  of  said 
treaty,  and  because  thereof,  held  it  to  be  their  duty  to  vote  for  its  ratifica- 
tion, into  disregarding  that  part  of  their  oaths  in  which  they  declared 

247 


248 


American   Government  and   Politics 


that  they  would  faithfully  discharge  the  duties  of  their  office  as  Senators; 
therefore,  be  it 

Resolved,  First.  That  such  action  by  the  said  or  any  other  caucus  is 
in  plain  violation  of  the  spirit  and  intent  of  the  Constitution  of  the  United 
States. 

Second.  That  for  two-thirds  or  any  other  number  of  the  Senators  of 
any  party  to  meet  and  declare  that  "it  shall  be  the  duty"  of  any  Senator 
to  vote  upon  any  question  other  than  as  his  own  convictions  impel  him, 
is  a  plain  violation  of  the  manifest  intent  and  spirit  of  the  Constitution 
all  have  sworn  to  uphold  and  defend. 

Third.  That  the  "one  vote"  the  Constitution  declares  each  Senator 
shall  have  is  his  own  vote,  and  not  the  vote  of  any  other  or  of  any  num- 
ber of  Senators  and  for  a  Senator  to  cast  that  one  vote  against  his  con- 
victions of  right  and  duty  in  the  premises  is  to  disfranchise  his  State  in 
the  Senate  and  to  deprive  it  of  the  representation  in  that  body  the  Con- 
stitution provides  it  shall  have. 

Fourth.  That  when  any  number  of  Senators  by  combination  or 
otherwise  undertake  through  any  species  of  coercion,  to  induce  other 
Senators  to  vote  except  as  their  judgments  and  consciences  tell  them,  it  is 
an  innovation  of  the  rights  of  a  State  to  equal  representation  with  other 
States  in  the  Senate,  and  is  subversive  of  their  rights  to  equal  representa- 
tion and  the  votes  of  its  Senators  in  the  Senate  that  the  Constitution  has 
provided  for. 

Fifth.  That  the  Senator  who  permits  any  body  of  other  Senators  to 
declare  and  define  for  him  what  his  duty  is  in  the  matter  of  his  vote  in  the 
Senate,  and  who  casts  his  vote  in  response  to  such  interference,  votes  not 
as  a  Senator  from  his  own  State,  but  as  a  Senator  from  the  other  States, 
and  he  augments  the  power  of  the  other  States  beyond  that  permitted 
by  the  Constitution  and  weakens  and  degrades  the  power  of  his  own  State 
in  the  Senate  in  violation  of  the  spirit  of  the  Constitution. 

Sixth.  That  for  any  Senator  to  vote  except  as  his  judgment  and  sense 
of  duty  under  his  oath  of  office  requires  is  to  degrade  the  high  office  of 
Senator  and  to  assail  the  dignity  and  standing  of  the  Senate  of  the 
United  States  —  qualities  possessed  in  such  high  degree  by  no  other 
legislative  body  in  the  world. 


Exceptions 
to  the 
obligations 
laid  on 
members  by 
the  caucus. 


I  think  I  may  refer  with  perfect  propriety  to  the  exceptions  to 
the  obligations  of  a  caucus  order  of  the  Senatorial  Democratic 
caucus.  If  I  may  not  refer  to  the  exceptions,  I  beg  that  some 
Senator  will  suggest  its  impropriety.  I  understand  the  exceptions 
are  public,  and  that  everybody  knows  them,  and  it  is  very  much 
to  the  credit  of  the  caucus  that  the  exceptions  have  been  made. 
First,  the  caucus  order  does  not  bind  when  to  do  so  would,  in  the 
opinion  of  the  Senator,  cause  him  to  violate  the  Constitution. 


Congress  at  Work  249 

Second,  it  is  not  obligatory  when  he  has  in  advance  committed 
himself  before  the  public.  Third,  it  is  not  obligatory  upon  him 
when  to  vote  as  the  caucus  requests  would  cause  him  to  violate 
the  instructions  of  his  State. 

But,    Mr.    President,    the    second  —  when    committed    before   One  of  the 

•f'.ir  1  .•  r  !•  1  exceptions 

caucus  action  —  is  of  itself  a  condemnation  of  everything  else,    condemns 
Why  should  it  exempt  a  Senator  simply  because  he  has  committed   the  caucus 
himself  in  the  face  of  the  public  to  the  measure  that  is  to  be  reached   ^^^  ^'^" 
through  a  caucus?     I  suppose  it  is  because  it  would  humiliate  him 
in  the  eyes  of  the  public.     It  is  not  the  desire  of  the  caucus  to 
humiliate  a  Senator.     Therefore,  because  he  would  seem  to  be 
inconsistent,  because  it  would  appear  that  he  was  driven  by  caucus 
action  to  vote  against  his  convictions,  the  caucus  resolutions  shall 
not  apply. 

Ah,  Mr.  President,  it  does  not  provide,  however,  for  the  con-  The 
science  of  a  Senator.      It  does  not  provide  against  humiliating   ^^^^'f^ 
himself  in  his  own  estimation.     Because  it  would  be  a  humiliation   to  be  bound 
to  a  Senator  after  declaring  to  the  public  that  he  would  vote  one   ^g^'"ft  his 

.  conscience. 

way,  then,  as  a  result  of  caucus  action,  to  vote  another;  because 
it  would  put  him  or  be  liable  to  put  him  in  a  false  light  before  the 
public,  he  is  exempted.  But  he  himself  should  be  a  monitor  of 
which  he  should  stand  in  awe.  He  should  have  regard  for  his  own 
convictions.  He  should  feel  that  it  was  of  more  importance  to 
him  to  know  that  he  was  true  to  himself  than  to  feel  simply  that 
he  was  true  to  a  word  which  might  have  been  spoken  hastily,  but 
having  spoken  which,  he  must  not  retract.  Therefore  the  very 
exceptions  prove  the  extreme  injustice  and  the  indefensible  char- 
acter of  this  so-called  caucus  action. 

I  believe,  as  I  believe  in  the  right  of  free  speech,  in  the  right  of   T'^e  caucus 
independent  action,  in  the  conference  of  the  members  of  political   reasonable 
parties;  I  believe  that  they  cannot  assemble  too  often  for  the  pur-  and  right. 
poses  of  evolving  from  what  may  be  before  the  Senate,  the  right, 
and,  throughout  appeals  to  the  reason  and  the  logical  sense  of 
Senators,  leading  them  to  the  proper  line  of  action.    In  ninety-nine 
cases  out  of  one  hundred,  that  would  seem  to  be  the  necessary 


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American   Government  and   Politics 


But  it  is 
also  often 
coercive. 


Coercive 
caucuses  are 
demoralizing. 


result.  We  are  here  as  Democrats  or  as  Republicans.  Our  duty 
is  not  primarily  to  our  party  but  to  the  country ;  but  each  desires 
the  success  and  welfare  of  his  party.  His  future  depends  upon 
the  welfare  of  his  party;  then,  unless  there  is  some  venial  (.r 
corrupt  purpose  or  operating  influence,  when  his  party  colleagues 
meet  in  conference  and  the  question  is  subjected  to  the  test  of 
common  sense  and  duty  and  the  welfare  of  the  party,  if  the  reason 
can  be  reached,  the  reason  will  be  reached,  and  reason  will  prevail. 

Mr.  President,  from  what  has  been  said  and  what  appears  in 
the  pubhc  press,  the  caucus  is  not  intended  alone  to  reach  the 
reason.  It  is  coercive.  Suggestions  of  White  House  Democrats, 
suggestions  of  Republicans  surrendering  for  patronage  fly  thick 
and  fast  when  the  least  independence  is  shown.  The  caucus 
action  is  the  equivalent  of  saying,  "  When  we  cannot  reach  Sena- 
tors through  their  reason,  we  will  reach  them  through  their  fears." 
The  caucus  demand  is  the  equivalent  of  declaring  that  "  Senators 
are  dishonest,  and  through  motives  and  purposes  and  feelings  that 
are  degrading,  we  can  keep  a  Senator  in  line  with  us,  regardless 
of  his  honor  and  the  delicacy  of  the  communication  that  should 
exist  between  members  of  this  body." 

I  think  caucuses  of  this  kind  are  demoralizing  to  those  upon 
whom  they  are  intended  to  operate.  In  my  judgment,  when  you 
find  a  Senator  willing  to  submit  his  conscientious  convictions  upon 
a  great  public  question  to  the  behest  of  a  caucus  because  to  violate 
the  rule  of  a  caucus  would  weaken  him  at  the  polls  and  make  his 
chances  of  a  return  to  the  Senate  fewer,  you  will  find  a  man  whose 
moral  forces  have  been  weakened  and  who  is  more  likely  to  be 
reached  by  venial  influences  than  the  man  who  in  his  every  vote 
stands  by  his  convictions  of  duty. 


The  caucus 
only  defines 
a  senator's 
duty  as  a 
party 
member. 


Mr.  Bailey.  From  the  beginning  to  the  end  of  his  speech, 
and  from  the  first  line  of  his  preamble  to  the  last  line  of  his  resolu- 
tion, the  Senator  from  Colorado  has  proceeded  upon  a  false  hy- 
pothesis. He  has  assumed  that  his  Democratic  associates  are 
seeking  to  deprive  him  of  his  right  to  cast  his  vote  in  the  Senate 


Congress  at  Work  251 

according  to  his  own  judgment  and  conscience;  and  he  does  be- 
tray either  an  inability  or  an  unwillingness  to  understand  the 
difference  between  his  relation  to  the  Senate  and  his  relation  to  his 
party.  The  Democratic  caucus  has  simply  and  only  defined  his 
duty  as  a  Democrat,  and  it  is  for  him  to  determine  how  far  his 
duty  as  a  Senator  requires  him  to  disregard  his  duty  as  a  Democrat. 
Mr.  President,  there  is  no  Senator  in  this  body  and   I   doubt  The 

•  1       •  •  necessity  of 

whether  there  is  any  citizen  of  this  country  who  is  more  tenacious   majority 
of  his  opinion  than  I  am ;    and  yet,  without  any  sacrifice  of  my  rule  in  the 
self-respect,  and  without  any  sacrifice  of  my  independence,  over  ^'^^  ^' 
and  again  I  have  submitted  to  a  decision  of  a  majority  of   my 
party  as  to  what  candidate  I  should  support  and  what  platform  he 
should  stand  upon.     I  expect  to  do  that  to  the  end,  or  until  my 
party  nominates  such  a  man  or  promulgates  such  a  platform,  that 
my  duty  as  a  citizen  will  not  permit  me  to  submit,  and  then  I  shall 
withdraw  from  the  party,  but  in  withdrawing  I  shall  not  try  to  sow 
the  seeds  of  disorganisation  there  by  denying  their  authority  and 
jurisdiction  to  nominate  a  candidate  and  adopt  a  platform. 

I  believe,  as  the  Senator  from  Colorado  appears  not  to  believe,   Senators 

'  .  ^^  bound  to 

in  the  right  of  the  people  to  instruct  a  Senator.  We  are  not  here  obey  in- 
to represent  ourselves.  We  are  here  to  represent  our  States,  and  structions. 
whenever  I  cannot  honestly  and  conscientiously  voice  the  senti- 
ments of  the  people  whose  commission  I  hold,  I  will  resign  my 
seat  in  this  body.  I  will  not  defy  them;  I  will  not  keep  their 
office  and  flaunt  their  convictions,  but  whenever  I  cannot  obey  their 
will  and  preserve  my  self-respect,  I  will  take  their  commission  back 
and  lay  it  down  unsullied  at  their  feet  and  allow  them  to  choose  a 
Senator  who  can  represent  them  without  misrepresenting  himself. 

I  am  a  partisan  myself,  but  I  must  be  permitted  to  believe  that  PA-tisanship 
my  partisanship  had  its  origin  in  my  patriotism.  I  am  a  partisan  patriotism. 
because  I  believe  the  glory  and  welfare  of  my  country  are  bound 
up  in  the  success  of  the  principles  of  the  Democratic  party;  and 
I  freely  declare  my  belief  that  the  Senators  on  the  other  side  are 
actuated  by  the  same  conviction.  I  have  heard  men  say  they  were 
Democrats  because  they  were  born  in  that  political  faith,  and  that 


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American  Government  and   Politics 


other  men  are  Republicans  because  they  were  so  born.  I  have 
no  doubt  that  this  actually  describes  a  certain  class  of  men,  but 
it  can  never  describe  the  kind  of  a  man  who  is  fit  to  sit  in  the  Senate 
of  the  United  States  as  the  ambassador  from  a  great  American 
Commonwealth.  Those  who  come  here  are  and  ought  to  be 
controlled  by  a  devotion  to  certain  principles,  and  they  unite  them- 
selves with  a  given  party  because  they  believe  that  party  best  cal- 
culated to  promote  the  growth,  the  permanence,  and  the  success 
of  those  principles. 

Let  us  grant  this,  and  what  follows?  As  unerringly  as  night 
follows  the  day,  it  must  follow  that  we  recognize  the  right  of  the 
majority  to  prescribe  the  party  conduct  which  is  to  perpetuate 
those  principles.  It  will  never  happen  that  the  party  will  take 
any  position  upon  which  every  member  of  it  will  agree,  but,  agree- 
ing in  the  main,  they  must  consent  to  waive  the  immaterial  or 
infrequent  differences  in  order  to  promote  the  accomplishment  of 
an  important  and  common  end. 

That  applies  not  only  to  political  parties;  it  applies  to  every 
kind  of  an  organisation.  The  right  of  the  majority  to  rule  is  not 
a  despotism.  Jefferson  declared  it  to  be  the  vital  principle  of  a 
Republic  from  which  there  is  no  appeal  but  to  force.  The  rule 
of  the  majority  is  not  only  the  vital  principle  of  Republics  but  it  is 
the  vital  principle  of  every  organisation  of  every  kind.  Take 
your  corporate  institution  organized  for  profit.  So  long  as  they 
pursue  the  object  of  their  charter,  the  majority  must  rule.  When 
the  majority  depart  from  the  charter  purpose,  the  member  is  not 
put  to  the  necessity  of  withdrawing  because  he  has  investments 
there.  He  simply  resorts  to  the  courts  and  they  dissuade  the  ma- 
jority from  abandoning  the  purposes  of  the  incorporation.  Take 
the  great  religious  denominations  of  the  country.  Does  a  man 
forfeit  his  right  to  worship  God,  to  believe  in  Christ  and  read  the 
Scriptures  simply  because,  belonging  to  the  Methodist  Church, 
he  denies  one  of  its  tenets  and  is  expelled?  The  Church  expels 
a  man  who  does  not  agree  with  it  on  important  matters  of  doctrine 
but  he  can  still  serve  and  worship  God  in  his  own  way.     I  believe 


Congress  at  Work  253 

all  Churches  expel  the  unorthodox  except  the  hard  shell  Baptist 
church,  and  it  simply  withdraws  from  the  erring  brother.  There 
is  no  kind  of  an  organisation  under  this  flag  to-day  where  the  right 
of  the  majority  to  rule  is  not  recognised  and  enforced.  I  sub- 
scribe to  it ;  I  submit  to  it  cheerfully ;  and  I  only  reserve  the  right, 
whenever  I  believe  it  departs  so  essentially  from  its  fundamental 
principles  that  I  can  no  longer  co-operate  with  it,  of  doing  as  the 
Senator  from  Colorado  has  done  more  than  once  —  I  want  the 
privilege  of  defying  its  decision. 

102.   A  Criticism  on  the  Efficiency  of  the  House  of  Representatives 

Mr.  Bryce,  in  common  with  other  European  observers  of  the 
House  of  Representatives,  is  struck  with  the  din  of  the  House  and 
its  air  of  confusion  and  restlessness  as  compared  with  the  decorum 
and  dignity  of  the  Senate  or  the  Parliament  of  England.  The 
House  as  a  whole  has  proved  a  rather  unwieldy  working  institu- 
tion, and  Mr.  Bourke  Cockran  thus  accounts  for  this  condition  of 
afifairs :  — 

Mr.  Speaker,  It  is  to  the  proposal  to  extend  the  term  of  repre-   Causes  for 
sentatives  in  Congress  that  I  desire  to  address  myself.     I  sympa-   ciency  of 
thize  most  keenly  with  every  one  who  wishes  to  make  vigorous   the  House, 
the  control  of  the  people  over  their  representatives  and  over  every 
branch  of  the  Government.     It  is  precisely  for  that  reason  that 
I  believe  in  extending  that  term.     This  is  the  popular  branch  of 
our  political  system.     Popular  control  of  the  Government  can  be 
made  effective  only  by  making  this  House  efficient.     This  House 
is  the  one  branch  of  our  Government  that  according  to  all  testi- 
mony, is  steadily  declining  in  power,  and  its  decline  is  obviously 
a  decrease  in  the  direct  influence  of  the  people  over  legislation. 
To  what  must  this  decline  of  the  House  be  attributed  ?     To  two 
causes  —  a  defect,  a  fatal  weakness  in  its  structure  as  established 
by  the  Constitution,  and  almost  inconceivable  folly  in  the  method   rpj^^ 
of  organization  established  by  itself.  diiTiculties 

Sir,  it  is  no  exaggeration  to  say  that  the  House  is  organized  for  °^  ^^^  '  ^ 
disorder  and  incapacity.     Look  at  it.     This  vast  barnlike  chamber  House. 


254 


American  Government  and   Politics 


of  itself  is  enough  to  make  impracticable  anything  like  intelligible 
debate.  The  distances  between  members  in  different  parts  of 
this  Hall  are  such  that  conversation  is  seldom  regarded  as  an 
interruption.  In  the  resulting  confusion,  it  is  impossible  to  follow 
or  even  understand  the  proceedings.  I  sit  in  a  part  of  the  House 
now  where  for  all  that  I  can  hear  of  the  debates  I  might  as  well 
be  out  of  the  Chamber.  To  learn  what  the  House  is  doing  I  must 
leave  my  seat,  and  this  is  forbidden  by  rules.  To  participate  in 
the  proceedings  of  the  House  I  must  therefore  violate  its  rules. 
I  can  be  attentive  to  my  duties  only  by  becoming  disorderly  in  my 
behavior.  Under  the  rules  I  am  out  of  order  now,  for  I  am  speak- 
ing from  another  Member's  seat.  If  I  attempted  to  speak  from 
my  ovra,  I  would  be  inaudible  in  a  large  part  of  the  Hall. 

Surely,  Sir,  it  is  not  extravagant  to  say  that  the  House  seems  to 
have  embraced  diligently  every  opportunity  to  reduce  itself  to 
incapacity  by  keeping  itself  in  disorder.  Against  the  absurdities 
of  its  own  organization  a  complete  remedy,  of  course,  is  always 
in  its  own  hands.  But  the  gravest  cause  of  its  incapacity  is  in 
the  term  of  its  Members,  and  this  can  be  remedied  only  by  a  Con- 
stitutional amendment. 

The  Congress  does  not  convene  till  the  month  of  December 
preceding  the  choice  of  its  successor.  From  the  very  moment  he 
takes  his  oath  of  office  before  this  desk,  each  Member  is  plunged 
into  the  throes  of  a  struggle  for  reelection.  How  can  he  perform 
his  duties  impartially  and  fearlessly  while  three-fourths  of  his 
attention  must  be  distracted  by  the  exigencies  of  his  own  position  ? 
You  may  say  that  the  honest  and  efficient  Member  will  neglect  his 
personal  interests  and  devote  himself  exclusively  to  his  represen- 
tative duties.  Well,  Mr.  Speaker,  what  duty  can  be  higher  than 
seeing  that  his  district  is  well  represented?  (Laughter.)  And 
he  must  think  himself  the  very  best  representative  his  district 
could  find  or  else  he  could  not  justify  himself  in  coming  here. 

The  House  is  reduced  to  this  position :  in  the  first  —  the  longer 
and  more  important  —  session,  every  Member  is  striving  for 
renomination  and  reelection  from  the  very  hour  he  is  sworn  in 


Congress  at  Work  255 

until  the  adjournment,  and  in  the  second  session  he  has  either  been 
beaten,  in  which  case  his  interest  in  the  session  is  sensibly  reduced, 
if  not  wholly  extinguished,  or  else  he  has  been  reelected,  in  which 
case  his  sense  of  security  is  apt  to  be  too  great  for  efficiency.  (Ap- 
plause and  laughter.)  His  whole  service,  except  under  very 
exceptional  conditions,  is  confined  to  two  sessions.  In  the  first 
every  thing  tends  to  make  him  incapable.  In  the  second,  he  may 
be  indifferent.  (Laughter.)  We  declare  at  every  stage  that  the 
House  is  declining  in  influence.  Yet  we  lose  no  chance  to  push 
it  farther  along  on  the  downward  slope.  To  me  the  wonder  is 
not  that  the  House  has  declined  in  consequence,  but  that  any  of 
its  consequence  survives. 

We  organize  ourselves  with  rules  which  are  conceived  appar- 
ently in  distrust  of  our  own  honesty.  Every  experience  of  this 
House  proves  that  when  it  is  left  to  the  control  of  its  own  majority, 
it  evolves  legislation  of  the  very  highest  excellence;  yet  we  sur- 
render ourselves  to  three  gentlemen  (wiser  perhaps  than  any  other 
three,  but  not  so  wise  as  the  whole  400  who  compose  our  mem- 
bership) ,  and  to  this  narrow  minority  we  entrust  the  entire  control 
and  direction  of  our  proceedings,  holding  to  ourselves  at  most, 
merely  a  right  to  approve  or  to  veto  their  proposals.  And  this 
upon  the  ground  openly  stated  that  if  left  to  ourselves  we  would 
perpetrate  enormities  or  follies.  All  this  would  be  impossible  in 
a  House  whose  Members  had  such  a  term  of  office  that  they  could 
become  acquainted  with  each  other,  and  by  knowledge  of  their 
different  capacities  and  qualities  learn  to  cooperate  effectively 
for  wholesome  legislation. 

Why  has  the  Senate  grown  at  the  expense  of  this  House,  although   Why  the 

Scrititc  IS 

the  framers  of  the  Constitution  intended  that  we  should  be  the  superior  to 
dominant  feature  of  our  political  system  ?  Because  the  Senate  is  the  House. 
a  continuous  body !  Every  Member  holds  for  six  years.  They 
find  themselves  bound  together  by  a  hundred  influences  growing 
out  of  extended  association  and  however  they  may  differ  on  other 
matters  they  stand  always  unitedly  for  the  dignity  and  power  of 
their  Chamber. 


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American  Government  and  Politics 


His  vote. 


103.    The  Duties  of  the  Speaker  of  the  House 

The  duties  of  the  Speaker  of  the  House  of  Representatives  are 
thus  laid  down  in  the  Manual  of  the  Rules. 

1.  The  Speaker  shall  take  the  chair  on  every  legislative  day 
precisely  at  the  hour  to  which  the  House  shall  have  adjourned  at 
the  last  sitting,  immediately  call  the  members  to  order,  and  on  the 
appearance  of  a  quorum,  cause  the  Journal  of  the  proceedings  of 
the  last  day's  sitting  to  be  read,  having  previously  examined  and 
approved  the  same. 

2.  He  shall  preserve  order  and  decorum,  and,  in  case  of  disturb- 
ance or  disorderly  conduct  in  the  galleries,  or  in  the  lobby,  may 
cause  the  same  to  be  cleared. 

3.  He  shall  have  general  control,  except  as  provided  by  rule  or 
law,  of  the  Hall  of  the  House,  and  of  the  corridors  and  passages 
and  of  the  unappropriated  rooms  in  that  part  of  the  Capitol  as- 
signed to  the  use  of  the  House,  until  further  order. 

4.  He  shall  sign  all  acts,  addresses,  joint  resolutions,  writs, 
warrants,  and  subpoenas  of,  or  issued  by  order  of,  the  House,  and 
decide  all  questions  of  order,  subject  to  an  appeal  by  any  member, 
on  which  appeal  no  member  shall  speak  more  than  once,  unless 
by  permission  of  the  House. 

5.  He  shall  rise  to  put  a  question,  but  may  state  it  sitting; 
and  shall  put  questions  in  this  form,  to  wit:  "As  many  as  are  in 
favor  (as  the  question  may  be),  say  Aye;"  and  after  the  affirmative 
voice  is  expressed,  "As  many  as  are  opposed,  say  No;"  if  he 
doubts,  or  a  division  is  called  for,  the  House  shall  divide;  those 
in  the  affirmative  of  the  question  shall  first  rise  from  their  seats, 
and  then  those  in  the  negative;  if  he  still  doubts,  or  a  count  is 
required  by  at  least  one-fifth  of  a  quorum,  he  shall  name  one  from 
each  side  of  the  question  to  tell  the  members  in  the  affirmative 
and  negative;  which  being  reported,  he  shall  rise  and  state  the 
decision. 

6.  He  shall  not  be  required  to  vote  in  ordinary  legislative  pro- 
ceedings, except  where  his  vote  would  be  decisive,  or  where  the 


Congress  at  Work 


257 


House  is  engaged  in  voting  by  ballot ;  and  in  all  cases  of  a  tie  vote 
the  question  shall  be  lost. 

7.  He  shall  have  the  right  to  name  any  member  to  perform  the  Appoint- 
duties  of  the  Chair,  but  such  substitution  shall  not  extend  beyond  "^1"!-?  f' 
an  adjournment:  Provided,  Jiowever,  That  in  case  of  his  illness, 
he  may  make  such  appointment  for  a  period  not  exceeding  ten 
days,  with  the  approval  of  the  House  at  the  time  the  same  is  made; 
and  in  his  absence  and  omission  to  make  such  appointment,  the 
House  shall  proceed  to  elect  a  Speaker  pro  tempore,  to  act  during 
his  absence. 


104.    The  Political  Significance  of  the  Speakership  * 

The  speakership  in  the  House  of  Representatives  is  thus  con- 
trasted with  the  corresponding  position  in  the  British  House  of 
Commons. 

Mr.  Towne.  The  Speaker  is,  in  my  judgment,  almost  as  much 
sinned  against  as  sinning.  The  fact  that  under  both  Republican 
and  Democratic  regimes  very  largely  the  same  complaint  has  been 
made  in  respect  to  the  exercise  of  quasi-autocratic  power  by  the 
Chair,  is  itself  a  recognition  to  a  considerable  degree  that  the  neces- 
sity for  exercising  that  kind  of  power  inheres  in  the  duties  of  the 
office  itself  as  it  has  evolved  in  our  system. 

The  Speakership  of  this  House,  Sir,  in  its  origin  was  not  a  politi- 
cal office.  It  is  interesting  to  contrast  it  with  the  speakership  of 
the  English  House  of  Commons,  whence  we  borrow  very  largely 
the  model  upon  which  this  House  is  constructed.  In  the  House  of 
Commons  the  speaker  is  a  mere  moderator,  who  presides  over  a 
parliamentary  body  for  the  purpose  of  enforcing  ordinary  parlia- 
mentary rules.  The  office  has  no  political  significance.  That 
fact  is  illustrated  by  the  recent  reelection  of  Mr.  Lowther,  the  Con- 
servative speaker,  by  the  new  enormous  Liberal  majority  in  the 
House  of  Commons. 

If  a  speaker  is  a  competent  parliamentarian,  a  fair  man,  and  a 
man  of  ability,  no  majority  in  the  English  parliament  cares  to 


Evidence 
of  the 
necessity 
for  quasi- 
autocratic 
power. 


The 

speakership 
in  the 
House  of 
Commons. 


How  the 
EngHsh 
speakership 
evolved. 


258  American   Government  and  Politics 

which  party  he  belongs.  But  originally  the  English  speaker  was 
a  political  officer.  His  name  signifies  it.  He  spoke  for  the  Com- 
mons with  the  King,  and  to  a  considerable  degree  was  able  to 
direct  the  deliberations  of  the  House  and  to  select  the  subjects 
upon  which  it  should  deliberate.  In  process  of  time  there  devel- 
oped the  English  ministry,  the  responsible  element  in  the  control 
of  the  legislature  in  the  British  system.  The  ministry  determines 
all  the  initiative  in  legislation,  marks  out  the  program  for  the  Com- 
mons, determines  what  propositions  of  legislation  shall  come  before 
that  body ;  and  the  opposition  —  I  may  interpolate  at  this  point  — 
has  always  the  right  to  propose  and  discuss  amendments.  That 
function  is  ever  the  great  factor  in  that  general  system  of  government 
to  which  the  English  Commons  and  this  body  belong,  a  system  that 
the  great  commentator  Bagehot  has  called  a  government  by  dis- 
cussion ;  and  if  at  any  time  this  House  shall  ever  have  its  ancient 
dignity  and  power  restored  and  shall  again  appeal  to  the  imagina- 
tion and  respect  of  the  people  of  America,  it  will  be  when  it  shall 
have  vindicated  for  itself  the  right  to  discuss  all  public  measures 
proposed  here.     (Loud  applause.) 

But  in  America  we  have  never  evolved  anything  that  answers 
to  the  British  Cabinet  or  ministerial  system.  There  must,  however, 
in  every  majority  temporarily  controlling  the  deliberation  of  this 
House,  be  somewhere  an  initiative,  the  power  of  determining  the 
policy  according  to  which  the  majority  shall  choose  to  proceed, 
and  how  it  shall  exercise  that  power.  It  is  interesting  to  note  how 
this  function  has  become  an  asset  of  our  Speakership,  an  evolution 
in  that  office  having  occurred  directly  opposite  from  that  which 
marked  the  English  speakership.  Speaker  Muhlenberg,  the  first 
Speaker  of  the  House  of  Representatives,  nearly  one  hundred  and 
twenty  years  ago,  was  a  mere  presiding  officer,  but  in  the  course  of 
time,  the  officer  who  commenced  as  a  mere  moderator  has  devel- 
oped into  the  most  powerful  political  functionary  in  our  government. 

There  are  some  things  that  those  who  propose  to  reform  the 
rules  of  the  House  can  entertain  little  difference  about.  One  of 
them  was  suggested  very  ably  by  the  gentleman  from  Tennessee 


Congress  at  Work.  259 

in  answer  to  a  question.  We  can  change  the  rules  of  the  House. 
We  can  if  we  will.  We  will  not  if  we  submit  ourselves  to  the  dic- 
tation of  a  few  men  on  grounds  of  alleged  party  interest  and  refuse 
to  stand  in  favor  of  the  inherent  legislative  rights  of  the  House. 
A  majority  party  can,  if  it  will,  make  a  few  simple  changes  in 
rules  that  will  go  a  great  way  to  restore  the  ancient  capacities  and 
prestige  of  the  House. 

For  instance,  now,  if  a  man  on  the  floor  of  this  House  desires  to  The 

•       •         •  SoctiKcr  s 

challenge  the  attention  of  the  Chair,  he  must  arise  in  his  place  and  po^er  of 
address  the  Speaker;  and,  as  I  think  the  language  of  the  rule  is  —  recognition, 
although  I  have  not  seen  it  lately  —  "  upon  being  recognized,  he 
shall  proceed  in  order."  If  he  is  not  recognized  he  cannot  proceed 
and  we  witness  this  anomalous  and  insulting  thing  —  although  the 
Speaker  is  not  in  a  personal  sense  to  blame  for  it,  let  me  say,  it  is 
inherent  in  the  rules  —  that  a  man  representing  a  great  American 
constituency  with  something  to  speak  about  and  to  think  about  and 
to  propose  to  this  great  body  on  his  individual  and  political  respon- 
sibility arises  in  his  place  here  and  the  Speaker  says  to  him,  "  For 
what  purpose  does  the  gentleman  arise  ?  "  And  if  the  purpose  does 
not  suit  the  speaker,  the  member  has  not  to  any  effectual  purpose, 
arisen  at  all,  but  has  to  take  his  seat. 

Now,  Sir,  when  two  or  more  men  are  contemporaneously 
challenging  the  attention  of  the  Chair,  it  is  a  mere  necessity  that 
he  shall  choose  which  one  to  recognize.  No  rule  can  ever  obviate 
that;  but  it  has  happened  time  and  again  —  it  happened  in  my 
own  case  in  the  Fifty-fourth  Congress  —  that  but  one  member  is 
asking  recognition  from  the  Chair  and  that  he  cannot  get  the  floor. 
Now,  I  undertake  to  say  that  any  Representative  of  a  great  con- 
stituency of  the  American  people  upon  this  floo!-  has  the  right,  or 
ought  to  have  the  right,  to  ask  the  attention  of  the  Chair  and  of  the 
House  to  anything  he  wishes  to  bring  to  the  attention  of  this  As- 
sembly when  nobody  else  is  claiming  the  floor  at  the  same  time. 


26o  American  Government  and  Politics 

105.    The  Sources  of  the  Speaker's  Power 

The  way  in  which  the  Speaker  of  the  House,  as  the  representative 
of  the  majority,  controls  the  business  of  that  body  is  thus  excel- 
lently described  by  Mr.  Ewing  Cockrell  in  an  article  in  the  A  rena :  — 

The  power  The  greatest  political  power  of  the  Speaker  comes  from  his  con- 

of  appointing        |  ^    committees  'oi  the  House.     The  power  of  the  com- 

committees.  _  ^_ 

mittees  lies  in  the  fact  that  substantially  every  bill  or  resolution  of 
a  legislative  character  introduced  in  the  House  must  be  referred  to 
some  committee,  and  before  it  can  be  passed  it  must  be  reported 
from  such  committee  back  to  the  House.  If  the  committee  chooses 
it  may  not  report  the  bill,  and  in  such  a  case  the  measure  is  prac- 
tically dead.  If  it  does  report  the  bill,  and  reports  it  favorably, 
the  bill  is  placed  on  the  calendar,  and  has  about  one  chance  in 
three  of  being  passed  —  as  the  House  can  pass  in  a  Congress  only 
about  one-third  of  the  bills  reported  to  it  by  its  committees.  The 
power  of  the  Speaker  through  these  agencies  lies  in  the  fact  that 
in  making  up  the  committees  he  can  appoint  whom  he  chooses.^ 
He  can  appoint  men  whom  he  knows  to  have  the  same  views  on 
certain  subjects  that  he  has,  or  who  he  knows  will  follow  his 
instructions.  Thus  at  the  very  beginning  of  a  Congress  he  may 
determine  a  large  part  of  the  legislation  to  be  enacted. 

Of  the  bills  reported  favorably  by  the  committees  it  is  the  Speaker 
who  decides  which  shall  pass.  He  does  this  by  recognizing  mem- 
bers to  call  up  for  consideration  only  such  bills  as  he  has  approved ; 
and  the  right  of  the  Speaker  to  recognize  whom  he  will  is  absolute. 
Not  only  is  recognition  the  Speaker's  most  absolute  power,  but  it 
is  also  the  most  continuous.  It  is  exerted  throughout  the  whole  of 
the  Congress,  and  determines  nearly  all  the  private  and  minor 
legislation.  The  use  of  the  power  of  recognition,  so  far  as  it  afifects 
legislation,  is  modified  by  party  stress  and  the  personal  wishes  of 
the  Speaker.  In  party  fights  the  power  of  the  Speaker  through 
recognition  rises  immensely;  for  the  minority  is  absolutely  helpless 
even  to  avail  itself  of  the  rules,  unless  it  can  first  get  the  recognition 

'  Even  in  this  he  is  largely  controlled  by  the  wishes  of  the  leaders  of  his  party. 


Congress  at  Work  261 

of  the  Speaker.  The  use  of  the  right  of  recognition  varies  chiefly 
with  his  personal  will.  As  a  rule,  the  Speaker  follows  the  wishes 
of  his  party  in  the  House ;  yet,  at  the  same  time,  if  he  chose  he  might 
easily  defeat  the  will  of  the  majority  through  his  control  of  recog- 
nition. And  as  a  matter  of  fact  this  has  often  been  done,  especially 
by  Mr.  Reed  in  the  last  Congress. 

Besides  the  control  over  the  order  of  business,  which  the  Speaker  Control 

,  ,       ,  .  Ill  •  •  I  over  the 

exerts  through  the  committees  and  through  recognition,  he  now,   ^^^^j.  ^f 
through  the  convenient  and  effective  Committee  on  Rules,  exer-   business. 
cises  a  general  control  over  all  the  important  business  of  the  whole 
Congress. 

The  Speaker  decides  all  questions  of  parliamentary  procedure.    Decisions 
In  general  he  exercises  but  Httle  influence  over  legislation  through   o"  pariia-'°"^ 
this  power,  yet  there  are  times  when  this  same  power  affects  legis-   mentary 
lation  in  the  highest  degree.     For  instance,  in  the  Fifty-first  Con-   ^^°'^^  ^'^^' 
gress,  Mr.  Reed  by  his  parhamentary  rulings  determined  a  very 
large  part  of  the  legislation  of  that  Congress.     Mr.  Blaine,  while 
Speaker,  by  rulings  directly  opposite  to  the  later  ones  of  Mr.  Reed, 
prevented  his  party  from  pushing  the  great  "  Force  Bill"  through 
the  House. 

The  Speaker  exercises  a  great  deal  of  influence  as  a  man.     Of  i''^*^ 
course,  the  amount  of  legislation  thus  determined  depends  entirely   p^.rsonal 
upon  the   Speaker's  personal  ability.     This  direct  influence  is   influence. 
exerted  chiefly  in  controlling  the  reports  of  committees,  and  in 
deciding  with  other  leaders  what  measures  shall  be  passed  during 
the  Congress.  .  .  . 

The  Speaker  is  the  slave  of  the  majority  —  and  its  absolute  The 
master.     This  is  not  a  paradox,  but  simply  a  statement  of  the  i,^  jj^^. 
extremes  of  the  Speaker's  relations  with  his  party.     There  are  times  majority, 
when  the  Speaker  completely  thwarts  the  will  of  a  majority  of  the 
House.     He  does  this  usually  by  having  his  committees  never  report 
bills  favored  by  the  House,  or  by  refusing  to  recognize  members  to 
call  up  measures  to  which  he  is  opposed.     This  was  the  case  in  the 
last  Congress  with  the  many  resolutions  for  Cuban  belligerency 
and  independence,  which  Mr.  Reed  would  not  allow  to  be  con- 


262  American   Government  and   Politics 

sidered.  However,  while  the  Speaker  can  prevent  the  House  from 
considering  a  bill,  he  can  never  force  it  to  pass  a  bill  against  its 
wishes.  On  the  other  hand,  all  the  Speaker's  powers  come  from 
the  majority,  and  are  held  only  at  its  will.  And  whenever  a  major- 
ity of  the  House  is  sufficiently  determined  to  pass  a  measure,  it 
can  always  do  so,  sooner  or  later,  notwithstanding  all  the  Speaker 
can  do.  However  the  Speaker  and  his  party  almost  always  work 
together.  When  they  disagree,  nine  times  out  of  ten  the  Speaker 
has  to  yield. 

106.    How  the  House  Disposes  of  Its  Business 

Mr.  Dalzell  has  given  in  an  article  in  the  Independent  the  follow- 
ing brief  account  of  the  way  in  which  the  mass  of  business  before 
the  House  is  handled. 

In  the  last  Congress  (59th)  there  were  386  members  (in  this 
Congress  there  are  391),  and  there  were  introduced  a  total  of  bills 
and  resolutions  numbering  27,114.  It  goes  without  saying  that 
not  all  of  these  bills  could  be  considered  nor  could  all  of  these 
members  have  a  hearing.  Theoretically  every  member  of  the 
House  is  the  equal  of  every  other  member;  every  constituency  is 
entitled  to  equal  recognition  with  every  other  constituency,  but 
practically  there  cannot  be  391  Speakers;  there  cannot  be  391 
chairmen  of  committees,  nor  equal  recognition  for  debate  given  to 
391  members.  The  real  purpose,  then,  to  be  accomplished  by  the 
rules  is  the  selection  from  the  mass  of  bills  introduced  those  proper 
to  be  considered.  There  is  no  limitation  on  the  right  of  a  member 
to  introduce  bills ;  as  many  as  he  likes  and  of  whatever  character 
he  pleases.  Every  bill  introduced  goes  to  an  appropriate  committee 
for  consideration,  and  whether  or  not  it  gets  upon  a  House  calendar 
for  action  depends  upon  its  being  reported  l^y  the  committee.  It 
may  never  be  reported,  and,  of  course,  if  not  reported  can  never 
be  considered  in  the  House.  In  the  last  Congress,  of  the  27,114 
bills  and  resolutions  introduced  there  were  7,839  reported;  the 
others  remained  in  the  pigeon-holes  of  the  various  committees. 
Of  the  bills  reported,  7,423  were  considered  and  passed. 


Congress  at  Work  162 

Bills  when  reported  go  upon  certain  calendars  of  the  House 
according  to  their  character.  Revenue  and  appropriation  bills: 
these  are  few  in  number,  not  to  exceed  perhaps  twenty.  They 
come  from  the  Committee  on  Ways  and  Means,  whose  office  it  is 
to  provide  revenue  for  the  Government,  and  from  the  Committee 
on  Appropriations,  and  from  the  several  committees  having  to  do 
with  the  maintenance  of  the  Government  in  its  various  arms,  such 
as  the  Naval  Committee,  the  MiHtary  Committee  and  others. 
These  bills  when  reported  go  to  a  calendar  known  as  the  Union 
Calendar,  but  they  are  highly  privileged,  as  they  ought  to  be,  for 
without  their  passage  the  Government  wheels  would  stop.  They 
can  be  called  for  consideration  at  any  time.  They  take  precedence 
of  all  other  bills,  and  the  Speaker  has  no  alternative  but  to  recognize 
the  member  caUing  them  up.  These  bills  are  considered,  not  in 
the  House,  but  in  Committee  of  the  Whole;  the  Speaker  leaves  the 
chair  and  another  member  takes  his  place. 

Another  class  of  bills  are  such  as  relate  to  some  public  purpose, 
but  carry  no  appropriation,  such,  for  instance,  as  bridge  bills  and 
the  like.  To  a  large  extent  bills  from  the  important  committees  priations. 
on  the  Judiciary  and  on  Interstate  and  Foreign  Commerce  are  of 
this  class.  These  bills  go  on  the  House  calendar  and  are  entitled 
to  consideration  in  the  morning  hour.  There  being  no  privileged 
bills  for  consideration,  the  morning  hour  is  the  regular  order.  The 
Speaker  must  call  the  committees  in  their  alphabetical  order,  and 
then  the  chairman  of  the  committee  which  has  the  call  is  entitled 
to  recognition  by  the  Speaker  as  of  right.  The  House  then  pro- 
ceeds to  the  consideration  of  such  bill  reported  by  the  committee 
in  question  and  then  on  the  House  calendar  as  the  chairman  calls 
up,  and  continues  its  consideration  until  a  vote  is  had,  subject 
only  to  a  possible  interruption  at  the  end  of  sixty  minutes,  to 
which  I  will  refer  hereafter.  But  even  if  interrupted  its  consider- 
ation is    continued  thereafter,  when  business  of    that   character   ^',  "^^,  ^ 

'  bills  and 

is  in  order,  until  it  is  finally  disposed  of.  nuasures 

In  addition  to  public  bills  such  as  I  have  enumerated,  some   (?!^    .      , 

'  '  District  of 

carrying  an  appropriation  and  others  not,  there  is  another  class  of   Columbia. 


264 


American   Government  and   Politics 


bills,  the  most  numerous  of  all  —  private  bills  providing  for  the 
relief  of  private  individuals  or  corporations.  These  have  a  calen- 
dar of  their  own  called  the  private  calendar,  and  are  in  order  on 
every  Friday  of  each  week.  They  are,  generally  speaking,  bills 
from  the  Committee  on  Claims,  from  the  Committee  on  War 
Claims  and  from  the  Committee  on  Pensions.  As  to  these  bills 
the  Speaker  has  no  independent  right  of  recognition.  When 
addressed  by  the  chairman  of  the  appropriate  committee  on  a 
Friday  he  must  recognize  him,  and  unless  the  House  declines  to 
consider  these  bills  the  Speaker  must  leave  the  chair  and  nomi- 
nate a  member  to  preside  in  his  place.  In  the  last  Congress  there 
were  reported  6,834  private  bills;  6,624  were  passed,  leaving  210 
undisposed  of. 

There  is  another  class  of  bills  that,  like  private  bills,  have  a  day 
of  their  own  under  the  rules,  viz..  District  of  Columbia  bills.  As  is 
well  known,  there  is  no  right  of  suffrage  in  the  District  of  Colum- 
bia, and  the  Senate  and  House  act  as  its  Select  and  Common  Coun- 
cils. District  of  Columbia  bills  are  in  order  on  two  Mondays  of 
every  month.  As  to  these  bills,  again  the  Speaker  has  no  alterna- 
tive but  to  recognize  the  Chairman  of  the  District  Committee 
when,  on  his  allotted  day,  he  calls  up  his  business. 

A  fourth  class  of  bills  provide  for  various  matters  of  public 
concern  and  are  such  as  involve  a  charge  upon  the  Treasury. 
These  go  to  the  Union  Calendar,  and  when  considered  must  be 
considered  in  Committee  of  the  Whole.  At  the  end  of  the  morning 
hour  (sixty  minutes)  a  motion  may  be  made  to  go  into  Committee 
of  the  Whole  for  the  consideration  of  bills  on  the  Union  Calendar 
or  for  the  consideration  of  some  particular  bill  thereon.  This 
motion  the  Speaker  is  bound  to  entertain. 

Then  a  large  part  of  the  business  of  the  House  is  done  wholly 
outside  of  the  rules,  by  unanimous  consent.  Some  gentleman, 
for  instance,  arises  in  the  House  and,  being  recognized  by  the 
Speaker,  asks  "unanimous  consent  for  the  present  consideration 
of  the  following  bill."  Unless  objection  is  made  the  bill  is  con- 
sidered and  voted  on.     It  is  in  connection  with  this  practice  and 


Congress  at  Work  265 

because  of  it  that  autocratic  power  is  without  any  reason  ascribed 
to  the  Speaker.  But  the  rules  have  nothing  at  all  to  do  with  this. 
The  applicant  for  recognition  asks  that  all  rules  be  set  aside.  To 
this  any  member  of  the  House  may  object.  Why  should  complaint 
be  made  if  the  Speaker  exercises  his  right  of  objection  by  refusing 
to  recognize  an  applicant  for  recognition  in  any  particular  case  ? 
Because  he  is  Speaker  he  is  no  less  a  member  of  the  House ;  no 
less  a  Representative  of  his  Congressional  District.  If  he  were  on 
the  floor  he  could  interpose  an  objection  to  any  request  for  unani- 
mous consent.  Should  he  be  less  able  to  interpose  that  objection 
because  he  is  in  the  chair?     Certainly  not. 


107.    Congress  and  Presidential  Influence 

In  a  reply  to  an  attack  made  by  Senator  Tillman  on  President 
Roosevelt  for  his  insistence  in  forcing  measures  upon  Congress, 
Senator  Beveridge  made  this  defense :  — • 

Mr.  President,  why  was  it  that  Andrew  Johnson  had  no  influ-   The  basis 
ence  with  Congress  and  that  Theodore   Roosevelt  has  infinite    president's 
influence  with  Congress?     It  is  because  one  of  them  had  not  the   influence, 
confidence  of  the  people,  and  the  other  one  has  the  entire  confidence 
of  the  people.     It  is  one  of  the  most  beautiful,  as  well  as  one  of  the 
most  beneficent,  workings  of  our  popular  form  of  government 
that  any  branch  of  it  that  at  any  particular  period  best  represents 
the  people  has  the  confidence  of  the  people. 

Why  was  it  that  in  the  last  Democratic  Administration  its  Presi-  Why 
dent  lost  the  control  of  Congress  almost  as  completely  as  did  losl^comrol 
Andrew  Johnson,  and  that  the  Senator's  own  party,  together  with 
his  colleagues  on  this  side  had  the  confidence  of  the  people  ?  It 
was  because  they  more  accurately  represented  the  people's  thoughts, 
needs,  demands,  and  aspirations.  There  is  no  subserviency  U[)on 
this  side  of  the  chamber  to  any  power  on  earth  except  to  the  public 
opinion  of  the  American  people.  What  the  Senator  thinks  is 
subserviency  to  the  demands  of  the  President  is  only  our  Repub- 


266 


American   Government  and   Politics 


lican  harmony  with  those  demands  which  are  nothing  more  than 
the  demands  of  the  American  people. 

Mr.  President,  strange  to  say  the  Senator  indulges  —  as  poli- 
ticians in  search  of  any  issue  no  matter  how  able  they  are,  must 
unfailingly  indulge,  —  in  a  paradox,  one  side  of  which  destroys  the 
other.  The  Senator  described  the  President's  power  as  coming 
from  his  appeals  to  "the  ignorant  masses  "  and  in  the  same  breath 
he  said  that  that  power  comes  from  his  use  of  patronage.  Was  it 
the  use  of  patronage,  Mr.  President,  that  impressed  Congress  with 
the  necessity  of  a  single  law  that  the  President  has  recommended 
in  the  last  seven  historic  years,  the  passage  of  which  his  recom- 
mendation helped  to  secure? 

Was  it  the  use  of  patronage  that  got  through  the  law  establishing 
the  Department  of  Commerce  and  Labor,  perhaps  the  greatest 
and  most  important  piece  of  legislation  that  has  been  passed  by 
an  American  Congress  since  the  Constitution  was  adopted,  with 
perhaps  the  single  exception  of  the  Piatt  amendment  ?  The 
Senator  denounces  us  for  voting  for  the  very  laws  which  the  Sena- 
tor and  his  colleagues  seeking  every  excuse  they  could  find  for 
not  voting  for,  yet  were  compelled  to  vote  for.  Take  all  of  these 
great  laws,  which  are  a  part  of  this  mighty  structure  of  righteous- 
ness which  the  wisdom  of  the  American  people,  as  voiced  by  the 
President,  has  enacted  into  statutes  by  this  Congress  on  both 
sides  —  does  the  Senator  disagree  with  one  of  them  ?  Would  he 
repeal  a  single  line  of  any  of  them?  Does  the  Senator,  speaking 
for  his  side  propose  to  go  before  the  American  people  with  the 
proposition  to  abolish  the  Department  of  Commerce  and  Labor? 
No.  To  repeal  the  railway  rate  law  ?  No.  To  repeal  the  pure 
food  law?  No.  To  repeal  the  meat  inspection  law?  No.  To 
repeal  the  irrigation  law  ?  No.  To  repeal  or  mangle  a  single  one 
of  those  great  laws  which  constitute  the  Republican  legislative 
record,  every  one  of  which  was  passed  upon  the  recommendation 
of  the  President  made  in  his  messages  ?     No. 


Congress  at  Work  267 


108.   Departmental  Preparation  of  Bills 

In  this  extract  from  a  debate  in  the  Senate  is  discussed  the  prob- 
lem of  how  far  executive  departments  ought  to  go  in  pressing  legis- 
lation in  Congress :  — 

Mr.  Carter.    Under  date  of  December  4,  1905,  the  Attorney  A  communi- 
General  communicates  as  follows  —  this  is  addressed  to  the  Speaker   the°Attornev 
of  the  House  of  Representatives  and  was  laid  before  the  House  in    General, 
regular  order  of  business  as  a  communication.     It  was  likewise 
sent  to  the  Senate.     I  am  informed  that  the  practice  is  for  all 
communications  to  be  printed  as  addressed  to  the  first  House  in 
which  they  happen  to  be  presented,  and  each  communication  is 
presented  in  both  Houses.     This  letter  reads: 

Herewith  enclosed  is  the  draft  of  a  proposed  bill  to  repeal  section  11, 
etc. 

It  goes  into  a  lengthy  statement  of  the  reasons  why  the  bill 
should  become  a  law. 

Mr.  Aldrich.  Has  the  Senator  any  precedent  prior  to  the 
present  Administration  of  any  communication  of  that  character 
from  any  Department  cxcejjt  the  Department  of  the  Interior? 

Mr.  Carter.    I  assume  that  the  Department  of  the  Interior  The 
has  not  recently  indulged  in  an  innovation  by  communicating   practice  in 
haphazard  to  Congress  in  a  manner  entirely  dissimilar  from  the   such  matters, 
methods  heretofore  employed.     I  do  know  that  the  Department  of 
Commerce  and  Labor,  the  Department  of  Justice,  the  Treasury 
Department,  the  Interior  Department,  the  War  Department,  and 
other  Departments  have  been  in  the  habit  of  communicating  here 
precisely  as  the  Secretary  of  the  Interior  communicated  yesterday, 
and  such  communications  have  always  been  ordered  printed  and 
referred  just  as  the  communication   received  yesterday  from  the 
Secretary  of  the  Interior  was  printed  and  referred. 

Mr.  Lodge.    Mr.  President,  I  think  I  was  correct  in  saying  that  The 
the  habit  has  insensibly  grown  u|)  and  that  it  also  is  spreading   -r^^ubr^ 
on  the  part  of  heads  of  Departments  to  make  voluntary  communi- 


268 


American  Government  and   Politics 


cations  or  to  volunteer  communications  directly  to  the  Senate  or 
to  the  House.  I  do  not  think  it  can  be  controverted  that  strictly 
those  communications  can  only  come  through  the  transmission 
by  the  President  and  I  think  it  is  always  well  to  be  a  little  strict 
in  the  observance  of  the  law  and  not  to  allow  such  irregular  cus- 
toms, even  if  apparently  harmless,  to  grow  up.  But  certainly, 
Mr.  President,  the  practice  of  submitting  bills  from  the  Departments 
without  request  to  the  two  houses  is  something  quite  recent,  unless 
my  memory  is  all  astray,  and  that  is  a  very  much  more  important 
matter.  ...  I  think,  Mr.  President,  it  is  well  to  put  a  stop  to 
this  submission  of  drafts  of  bills  to  Congress  by  subordinate 
executive  ofl&cers  or  by  heads  of  Departments  unless  they  are 
thereto  requested  by  one  of  the  two  Houses.  I  do  not  think  that 
volunteering  bills  from  the  Executive  Department  is  the  proper 
method. 

Of  course  under  the  English  system  the  bills  are  prepared  by  the 
executive  government,  which  is  a  committee  in  fact  of  the  two 
Houses,  and  they  prepare  their  own  measures  and  introduce  them. 
But  here  the  Executive  Department  is  distinct  and  unless  we  ask 
for  drafts  of  bills  for  our  own  convenience  and  for  the  promotion 
of  good  legislation,  it  seems  to  me  that  it  is  irregular  and  unwisely 
irregular  to  fall  into  the  practice  of  having  ofiiiccrs  of  the  Executive 
Department  present  bills  to  Congress  in  this  way. 

Half  a  dozen  came  in  the  other  day.  They  were  referred  to 
committees  without  taking  any  readings.  They  were  referred  to 
committees  for  consideration.  Those  bills  had  no  Calendar 
number.  They  do  nut  take  the  ordinary  course  of  any  other  bills. 
I  think  it  is  irregular  both  under  the  rules  and  under  the  statute. 

I  do  not  want  to  cut  off  the  advantage  that  we  have  in  getting 
ofi5cers  of  the  Departments  to  draw  proper  bills  for  us.  That  is  a 
duty  which  I  hope  tliey  will  always  perform  on  the  request  of  the 
Houses.  But  I  do  not  think  that  they  ought  to  submit  bills  un- 
asked for,  which  shall  go  in  this  irregular  v/ay  to  committees  for 
consideration.  If  the  head  of  a  Department  has  legislation  in 
which  he  is  interested  and  presents  it  to  the  chairman  of  the  com- 


tions. 


Congress  at  Work  269 

mittee  or  some  other  Senator  and  he  sees  fit  to  introduce  it,  that  of 
course  is  perfectly  proper.  The  bill  takes  the  usual  course.  But 
this  is  irregular,  just  as  is  this  method  of  submitting  reports.  I 
do  not  care  how  long  the  custom  has  lasted,  it  is  an  irregularity 
which  has  grown  up.  If  we  are  to  have  information  volunteered 
from  the  Departments,  let  it  come  through  the  President  of  the 
United  States  and  any  other  information  we  want  from  the  De- 
partments we  can  ask  for. 

109.    Log-rolling  in  Congress 

This  passage  from  a  speech  by  Mr.  Lilley  in  the  House  of 
Representatives  illustrates  the  way  in  which  members  attempt  to 
secure  the  expenditure  of  government  money  in  their  respective 
states: — 

On  December  2,  Mr.  Taylor  introduced  a  bill  calling  for  a   A  short  list 
naval  station  at  or  near  Fort  Morgan,  Ala.  °^!!?^™^"^' 

On  the  next  day  Mr.  Cooper  of  Texas  called  for  the  establish- 
ment of  a  dry  dock  on  or  near  Sabine  Pass. 

On  the  9th  of  December,  Mr.  Lamar  of  Florida  came  after  "  not 
more  than  two  million  dollars  for  a  dry  dock  at  Pensacola." 

On  the  same  day,  Mr.  SuUoway  of  New  Hampshire  was  after  a 
million  and  a  half  for  Portsmouth,  although  a  battleship  cannot 
get  to  this  port  in  safety. 

On  the  12th  of  December,  Mr.  Smith  of  California  came  into 
the  field  with  a  proposition  for  a  dry  dock  on  the  bay  of  San  Diego, 
California,  for  which  he  called  for  a  million. 

On  the  19th,  Mr.  Granger  of  Rhode  Island  put  in  his  proposition 
for  a  dry  dock  and  repairing  station  "  at  a  suitable  strategic  point  on 
the  Adantic." 

On  January  6th,  Mr.  Gregg  presented  the  demands  of  Texas  for 
a  dry  dock  at  or  near  Galveston,  Tex. 

And  then  on  January  20,  came  the  proposition  to  buy  the  de- 
funct Jamestown  Exposition,  fathered  by  Mr.  Maynard  of  Vir- 
ginia, which  if  adopted  would  add  $2,500,000  to  the  grand  total  of 
waste  on  navy  yards. 


270 


American   Government  and   Politics 


Each  one  I  imagine,  like  Senator  Tillman  wants  a  "  slice  for  his 
constituents."  A  member  of  a  recent  congress  complained  to  me 
that  although  he  had  secured  six  millions  out  of  the  Treasury 
for  his  district,  an  ungrateful  constituency  were  supporting 
six  competitors  against  him  for  renomination.  I  believe,  and  I 
am  certain  the  American  people  will  believe  that  he  should  have 
given  more  attention  to  the  country  at  large  rather  than  have  kept 
an  eye  single  to  his  particular  district. 


no.    The  Senate  at  Work* 

The  freedom  of  debate  in  the  Senate  as  contrasted  with  the  party 
discipline  imposed  in  the  House  is  thus  described  by  Mr.  H.  L. 
West  in  a  recent  article  in  the  Forum. 

In  the  Senate  the  individual  is  supreme.  Any  Senator  may 
address  the  presiding  officer  and  secure  recognition  at  any  time 
when  the  floor  is  not  occupied  by  a  colleague.  He  can  offer  a 
resolution  upon  any  subject,  and,  through  admirable  rules,  can 
place  the  Senate  upon  record  as  to  its  disposition.  If  the  major- 
ity of  the  Senate  desires  to  send  the  resolution  to  some  com- 
mittee crypt,  where  it  shall  remain  buried  until  the  campaign,  for 
instance,  is  safely  over,  the  reference  is  secured  only  after  a  yea- 
and-nay  vote.  If  the  resolution  goes  upon  the  calendar,  any 
Senator  can  at  any  time  move  that  the  Senate  proceed  to  its  con- 
sideration —  a  question  which  must  be  determined  without  de- 
bate. This  again  places  the  Senate  upon  record,  and  is  a  proceed- 
ing almost  unknown  in  the  House.  Almost  every  day  the  record 
is  made  up  in  the  Senate  upon  some  test  question,  because  the  right 
of  the  individual  is  not  abridged  or  restricted. 

As  long  as  any  Senator  desires  to  speak  upon  any  bill  under  con- 
sideration, just  so  long  must  a  hearing  be  accorded  and  a  vote 
postponed.  This  is  what  is  popularly  known  as  unlimited  debate. 
It  is  the  one  thing  which  makes  the  Senate  absolutely  unique  in 
legislative  bodies.  Only  recently  the  River  and  Harbor  Appro- 
priation Bill  failed  to  reach  a  final  vote,  because  a  Senator  occupied 


Congress  at  Work  271 

the  floor  during  the  last  thirteen  hours  of  the  session,  ostensibly 
criticising  the  measure,  but,  in  reality,  talking  against  time,  with 
the  knowledge  that  when  the  hands  of  the  clock  reached  the  hour 
of  noon,  Congress  would  expire  by  limitation,  and  the  bill  would 
die.  In  its  own  way,  the  Senate  accomplishes  more  work  —  that 
is  it  enacts  more  bills  —  than  the  House  of  Representatives.  No 
Senator  objects  for  the  mere  sake  of  objecting;  because  he  is 
aware  that  if  he  is  captious,  he  will  himself  encounter  innumerable 
stumbling-blocks  when  he  seeks  the  passage  of  measures  in  which 
he  is  interested.  He  is  only  one  of  ninety  Senators,  any  one  of 
whom  has  every  privilege  which  he  enjoys. 

It  is  the  fact  that  each  Senator  is  a  power  unto  himself  that  Independ- 
gives  the  Senate  its  peculiar  place  in  our  system  of  government.  Senators. 
When  a  vote  upon  a  treaty  or  an  important  measure  is  to  be  can- 
.vassed,  it  is  necessary  to  know  the  individual  view  of  each  Senator, 
a  task  frequently  surrounded  with  some  difficulty.  There  is  more 
independence  of  thought  and  action  in  the  Senate  than  in  the 
House.  Instances  where  two  Senators  of  the  same  pohtical  party 
from  the  same  State  vote  upon  opposite  sides  of  the  same  question 
are  by  no  means  rare,  and,  of  late  years,  have  become  quite  com- 
mon. Party  leaders,  therefore,  take  occasion,  during  the  days 
occupied  in  a  prolonged  debate,  to  investigate  the  condition  of 
their  own  ranks,  and  strengthen,  by  such  pressure  as  may  be  most 
effective,  any  weakness  they  may  discover. 

The  right  of  any  Senator  to  speak  at  any  time,  upon  any  subject.  The 
and  at  any  length,  develops  orators  and  debaters.  No  man  who  ofTalenr" 
possesses  a  talent  in  this  direction  need  lack  of  opportunity  to 
prove  his  capacity.  If  he  is  really  a  great  orator,  if  he  actually 
demonstrates  his  logical  and  thoughtful  mind,  he  forges  to  the 
front,  and  must  be  reckoned  with  by  those  who  assume  leadership. 
If,  on  the  other  hand,  he  is  dull  and  slow-witted,  lacking  both 
strength  of  thought  and  forcefulness  of  expression,  he  will  sink  by 
his  own  weight. 


272 


American  Government  and   Politics 


Senate 
approval 
of  House 
amend- 
ments. 


The  joint 

conference 

committee. 


III.   Communications  between  the  Houses 

These  extracts  from  the  Congressional  Record  illustrate  the 
way  in  which  agreements  and  disagreements  between  the  two 
bodies  are  registered,  and  arrangements  made  for  conferences. 

A  message  from  the  Senate,  by  Mr.  Parkinson,  its  reading  clerk, 
announced  that  the  Senate  had  agreed  to  the  amendments  of  the 
House  of  Representatives  to  the  bill  (S.  640)  to  extend  the  pro- 
visions, limitations,  and  benefits  of  an  act  entitled  "  An  act  granting 
pensions  to  the  survivors  of  the  Indian  wars  of  1832  to  1842,  in- 
clusive, known  as  the  Black  Hawk  war,  Creek  war,  Cherokee  dis- 
turbances, and  the  Seminole  war,"  approved  July  27,  1892. 

This  message  also  announced  that  the  Senate  had  disagreed  to 
the  amendments  of  the  House  of  Representatives  to  the  bill  (S. 
5269)  to  provide  a  commission  to  secure  plans  and  designs  for  a« 
monument  or  memorial  to  the  memory  of  Abraham  Lincoln,  late 
President  of  the  United  States,  had  asked  for  a  conference  with 
the  House  on  the  disagreeing  votes  of  the  two  Houses  thereon,  and 
had  appointed  Mr.  Wetmore,  Mr.  Hansbrough,  and  Mr.  Vest  as 
the  conferees  on  the  part  of  the  Senate. 


CHAPTER   XV 

THE   FEDERAL   JUDICIARY 

112.  Constitutional  Provisions 

Article  III 

Section  i.  The  judicial  power  of  the  United  States  shall  be  The 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as  Con- 
gress may  from  time  to  time  ordain  and  establish.  The  judges, 
both  of  the  supreme  and  inferior  courts,  shall  hold  their  offices 
during  good  behavior;  and  shall,  at  stated  times,  receive  for  their 
services  a  compensation,  which  shall  not  be  diminished  during 
their  continuance  in  office. 

Section  2.  The  judicial  power  shall  extend  to  all  cases  in  law  Jurisdiction 
and  equity  arising  under  this  Constitution,  the  laws  of  the  United  courts. 
States,  and  treaties  made  or  which  shall  be  made,  under  their 
authority;  to  all  cases  affecting  ambassadors,  other  public  min- 
isters, and  consuls;  to  all  cases  of  admiralty  and  maritime  juris- 
diction; to  controversies  to  which  the  United  States  shall  be  a 
party;  to  controversies  between  two  or  more  States;  between  a 
State  and  citizens  of  another  State;  between  citizens  of  different 
States;  between  citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States;  and  between  a  State,  or  the  citizens 
thereof,  and  foreign  states,  citizens,  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls,  and  those  in  which  a  State  shall  be  A  party,  the  Su- 
preme Court  shall  have  original  jurisdiction.  In  all  the  other  cases 
before  mentioned,  the  Supreme  Court  shall  have  appellate  juris- 
diction, both  as  to  law  and  fact,  with  such  exceptions  and  under 
such  regulations  as  the  Congress  shall  make. 
T  273 


274 


American   Government  and  Politics 


The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be 
by  jury;  and  such  trial  shall  be  held  in  the  State  where  the  said 
crimes  shall  have  been  committed;  but  when  not  committed 
within  any  State,  the  trial  shall  be  at  such  place  or  places  as  the 
Congress  may  by  law  have  directed. 


113.   Power  oj  the  Courts  to  Pass  on  the  Constitutional  it  y  of  Federal 

Statutes 

The  Constitution  nowhere  expressly  confers  upon  the  Supreme 
Court  the  power  of  declaring  statutes  invalid  on  the  ground  of 
unconstitutionality.  This  power  has  been  derived  with  inexorable 
logic  from  the  nature  of  the  instrument  itself,  and  was  for  the  first 
time  asserted  by  Chief  Justice  Marshall  in  the  celebrated  case  of 
Marbury  v.  Madison  from  which  this  extract  is  taken. 

The  question  whether  an  Act  repugnant  to  the  Constitution 
can  become  the  law  of  the  land,  is  a  question  deeply  interesting  to 
the  United  States ;  but,  happily,  not  of  an  intricacy  proportioned 
to  its  interest.  It  seems  only  necessary  to  recognize  certain  princi- 
ples, supposed  to  have  been  long  and  well  established,  to  decide  it. 

That  the  people  have  an  original  right  to  establish,  for  their 
future  government,  such  principles  as,  in  their  opinion,  shall  most 
conduce  to  their  own  happiness,  is  the  basis  on  which  the  whole 
American  fabric  has  been  erected.  The  exercise  of  this  original 
right  is  a  very  great  exertion ;  nor  can  it  nor  ought  it  to  be  frequently 
repeated.  The  principles,  therefore,  so  established,  are  deemed 
fundamental.  And  as  the  authority  from  which  they  proceed  is 
supreme,  and  can  seldom  act,  they  are  designed  to  be  permanent. 
This  original  and  supreme  will  organizes  the  government,  and  as- 
signs to  different  departments  their  respective  powers.  It  may 
either  stop  here,  or  establish  certain  limits  not  to  be  transcended 
by  those  departments. 

The  government  of  the  United  States  is  of  the  latter  description. 
The  powers  of  the  legislature  are  defined  and  limited;  and  that 
those  limits  may  not  be  mistaken,  or  forgotten,  the  Constitution  is 
written.     To  what  purpose  are  powers  limited,  and  to  what  pur- 


The   Federal  Judiciary  275 

pose  is  that  limitation  committed  to  writing,  if  these  limits  may,  at 
any  time,  be  passed  by  those  intended  to  be  restrained?  The 
distinction  between  a  government  with  limited  and  unlimited 
powers  is  abolished,  if  those  limits  do  not  confine  the  persons  on 
whom  they  are  imposed,  and  if  acts  prohibited  and  acts  allowed 
are  of  equal  obligation.  It  is  a  proposition  too  plain  to  be  con- 
tested, that  the  Constitution  controls  any  legislative  Act  repugnant 
to  it;  or,  that  the  legislature  may  alter  the  Constitution  by  an 
ordinary  Act. 

Between  these  alternatives  there  is  no  middle  ground.     The  The 
Constitution  is  either  a  superior  paramount  law,  unchangeable  by  jg  gither 
ordinary  means,  or  it  is  on  a  level  with  ordinary  legislative  Acts,   paramount, 
and,  like  other  Acts,  is  alterable  when  the  legislature  shall  please 
to  alter  it.     If  the  former  part  of  the  alternative  be  true,  then  a 
legislative  Act  contrary  to  the  Constitution  is  not  law;  if  the  latter 
part  be  true,  then  written  constitutions  are  absurd  attempts,  on  the 
part  of  the  people,  to  limit  a  power  in  its  own  nature  illimitable. 

Certainly  all  those  who  have  framed  written  constitutions  con-   Para- 
template  them  as  forming  the  fundamental  and  paramount  law  of   ^"essential 
the  nation,  and,  consequently,  the  theory  of  every  such  govern-   feature  of  a 
ment  must  be,  that  an  Act  of  the  Legislature,  repugnant  to  the   Constitution 
Constitution,  is  void.     This  theory  is  essentially  attached  to  a 
written  constitution,  and  is  consequently  to  be  considered,  by  this 
court,  as  one  of  the  fundamental  principles  of  our  society.     It  is 
not,  therefore,  to  be  lost  sight  of  in  the  further  consideration  of 
this  subject. 

If  an  Act  of  the  Legislature,  repugnant  to  the  Constitution,  is   Does  an 
void,  does  it,  notwithstanding  its  invalidity,  bind  the  courts,  and   ^^^^  ^j^^ 
oblige  them  to  give  it  effect?     Or,  in  other  words,  though  it  be  not   courts? 
law,  does  it  constitute  a  rule  as  operative  as  if  it  was  a  law  ?     This 
would  be  to  overthrow  in  fact  what  was  estabhshed  in  theory ; 
and  would  seem,  at  first  view,  an  absurdity  too  gross  to  be  insisted 
on.     It  shall,  however,  receive  a  more  attentive  consideration. 

It  is  emphatically  the  province  and  duty  of  the  judicial  depart-   j.^^^  ^^^gj 
ment  to  say  what  the  law  is.     Those  who  apply  the  rule  to  parlicu-   prevail. 


276 


American  Government  and   Politics 


lar  cases,  must  of  necessity  expound  and  interpret  that  rule.  If 
two  laws  conflict  with  each  other,  the  courts  must  decide  on  the 
operation  of  each.  So  if  a  law  be  in  opposition  to  the  Constitu- 
tion; if  both  the  law  and  the  Constitution  apply  to  a  particular 
case,  so  that  the  court  must  either  decide  that  case  conformably  to 
the  law,  disregarding  the  Constitution,  or  conformably  to  the 
Constitution,  disregarding  the  law,  the  court  must  determine  which 
of  these  conflicting  rules  governs  the  case.  This  is  of  the  very 
essence  of  judicial  duty.  If,  then,  the  courts  are  to  regard  the 
Constitution,  and  the  Constitution  is  superior  to  any  ordinary  Act 
of  the  Legislature,  the  Constitution,  and  not  such  ordinary  Act, 
must  govern  the  case  to  which  they  both  apply. 

Those,  then,  who  controvert  the  principle  that  the  Constitution 
is  to  be  considered,  in  court,  as  a  paramount  law,  are  reduced  to 
the  necessity  of  maintaining  that  courts  must  close  their  eyes  on  the 
Constitution,  and  see  only  the  law.  This  doctrine  would  subvert 
the  very  foundation  of  all  written  constitutions.  It  would  declare 
that  an  Act,  which,  according  to  the  principles  and  theory  of  our 
government,  is  entirely  void,  is  yet,  in  practice,  completely  obliga- 
tory. It  would  declare  that  if  the  legislature  shall  do  what  is 
expressly  forbidden,  such  Act,  notwithstanding  the  express  pro- 
hibition, is  in  reality  effectual.  It  would  be  giving  to  the  legisla- 
ture a  practical  and  real  omnipotence,  with  the  same  breath  which 
professes  to  restrict  their  powers  within  narrow  limits.  It  is  pre- 
scribing limits,  and  declaring  that  those  limits  may  be  passed  at 
pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the  great- 
est improvement  on  political  institutions,  a  written  constitution, 
would  of  itself  be  sufficient,  in  America,  where  written  constitu- 
tions have  been  viewed  with  so  much  reverence,  for  rejecting  the 
construction.  But  the  peculiar  expressions  of  the  Constitution 
of  the  United  States  furnish  additional  arguments  in  favor  of  its 
rejection.  The  judicial  power  of  the  United  States  is  extended 
to  all  cases  arising  under  the  Constitution.  Could  it  be  the  inten- 
tion of  those  who  gave  this  power,  to  say  that  in  using  it  the  Con- 


The   Federal  Judiciary  277 

stitution  should  not  be  looked  into?  That  a  case  arising  under 
the  Constitution  should  be  decided  without  examining  the  instru- 
ment under  which  it  arises  ?  This  is  too  extravagant  to  be  main- 
tained. In  some  cases,  then,  the  Constitution  must  be  looked  into 
by  the  judges.  And  if  they  can  open  it  at  all,  what  part  of  it  are 
they  forbidden  to  read  or  to  obey? 

There  are  many  other  parts  of  the  Constitution  which  serve  to  Illustrations 
illustrate  this  subject.  It  is  declared  that  "no  tax  or  duty  shall  ^o^trine 
be  laid  on  articles  exported  from  any  State."  Suppose  a  duty 
on  the  export  of  cotton,  of  tobacco,  or  of  flour;  and  a  suit  insti- 
tuted to  recover  it.  Ought  judgment  to  be  rendered  in  such  a 
case?  Ought  the  judges  to  close  their  eyes  on  the  Constitution, 
and  only  see  the  law?  The  Constitution  declares  "that  no  bill 
of  attainder  or  ex  post  facto  law  shall  be  passed."  If,  however, 
such  a  bill  should  be  passed,  and  a  person  should  be  prosecuted 
under  it,  must  the  court  condemn  to  death  those  victims  whom 
the  Constitution  endeavors  to  preserve?  "No  person,"  says  the 
Constitution,  "shall  be  convicted  of  treason  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  confession  in  open 
court."  Here  the  language  of  the  Constitution  is  addressed  espe- 
cially to  the  courts.  It  prescribes,  directly  for  them,  a  rule  of 
evidence  not  to  be  departed  from.  If  the  legislature  should  change 
that  rule,  and  declare  one  witness,  or  a  confession  out  of  court, 
sufficient  for  conviction,  must  the  constitutional  principle  yield 
to  the  legislative  Act? 

From  these,  and  many  other  selections  which  might  be  made,   The  judicial 
it  is  apparent  that  the  framers  of  the  Constitution  contemplated   support  the 
that  instrument  as  a  rule  for  the  government  of  the  courts,  as  well    Constitution, 
as  of  the  legislature.     Why  otherwise  does  it  direct  the  judges  to 
take  an  oath  to  support  it  ?     This  oath  certainly  applies  in  an  es- 
pecial manner  to  their  conduct  in  their  official  character.     How 
immoral  to  impose  it  on  them,  if  they  were  to  be  used  as  the  instru- 
ments, and  the  knowing  instruments,  for  violating  what  they  swear 
to  support !     The  oath  of  office,  too,  imposed  by  (he  legislature, 
is  completely  demonstrative  of  the  legislative  opinion  on  this  sub- 


278 


American   Government  and   Politics 


ject.  It  is  in  these  words:  "I  do  solemnly  swear  that  I  will  ad- 
minister justice  without  respect  to  persons,  and  do  equal  right  to 
the  poor  and  to  the  rich ;  and  that  I  will  faithfully  and  impartially 
discharge  all  the  duties  incumbent  on  me  as  .  .  .  ,  according  to 
the  best  of  my  abilities  and  understanding,  agreeably  to  the  Con- 
stitution and  laws  of  the  United  States/'  Why  does  a  judge 
swear  to  discharge  his  duties  agreeably  to  the  Constitution  of  the 
United  States,  if  that  Constitution  forms  no  rules  for  his  govern- 
ment —  if  it  is  closed  upon  him,  and  cannot  be  inspected  by  him? 
If  such  be  the  real  state  of  things,  this  is  worse  than  solemn  mock- 
ery. To  prescribe,  or  to  take  this  oath,  becomes  equally  a  crime. 
It  is  also  not  entirely  unworthy  of  observation,  that  in  declaring 
what  shall  be  the  supreme  law  of  the  land,  the  Constitution  itself 
is  first  mentioned ;  and  not  the  laws  of  the  United  States  generally,, 
but  those  only  which  shall  be  made  in  pursuance  of  the  Consti- 
tution^  have  that  rank.  Thus,  the  particular  phraseology  of  the 
Constitution  of  the  United  States  conlirms  and  strengthens  the 
principle,  supposed  to  be  essential  to  all  written  constitutions,  that 
a  law  repugnant  to  the  Constitution,  is  void;  and  that  courts,  as 
well  as  other  departments,  are  bound  by  that  instrument. 


114.    Tlie  Poivcr  of  the  Federal  Courts  over  State  Statutes 

The  power  of  the  Supreme  Court  to  draw  before  it  by  proper 
process  state  statutes  and  to  determine  whether  or  not  they  con- 
travene provisions  of  the  federal  Constitution  is  thus  explained 
and  defended  by  Justice  Story  in  the  case  of  Martin  v.  Hunter's 
Lessees. 

A  moment's  consideration  will  show  us  the  necessity  and  pro- 
priety of  this  provision  in  cases  where  the  jurisdiction  of  the  state 
courts  is  unquestionable.  Suppose  a  contract  for  the  payment  of 
money  is  made  between  citizens  of  the  same  state,  and  performance 
thereof  is  sought  in  the  courts  of  that  state;  no  person  can  doubt 
that  the  jurisdiction  completely  and  exclusively  attaches,  in  the 
first  instance,  to  such  courts.  Supj)osc  that  at  the  trial  the  defend- 
ant sets  up  in  his  defense  a  tender  under  a  state  law,  making  paper 


The   Federal  Judiciary  279 

money  a  good  tender,  or  a  state  law,  impairing  the  obligation  of 
such  contract,  which  law,  if  binding,  would  defeat  the  suit.  The 
constitution  of  the  United  States  has  declared  that  no  state  shall 
make  anything  but  gold  or  silver  coin  a  tender  in  payment  of  debts, 
or  pass  a  law  impairing  the  obligation  of  contracts.  If  Congress 
shall  not  have  passed  a  law  providing  for  the  removal  of  such  a 
suit  to  the  courts  of  the  United  States,  must  not  the  state  court  pro- 
ceed to  hear  and  determine  it  ?  Can  a  mere  plea  in  defense  be  of 
itself  a  bar  to  further  proceedings,  so  as  to  prohibit  an  inquiry 
into  its  truth  or  legal  propriety,  when  no  other  tribunal  exists  to 
whom  judicial  cognizance  of  such  cases  is  confided  ?  Suppose  an 
indictment  for  a  crime  in  a  state  court,  and  the  defendant  should 
allege  in  his  defense  that  the  crime  was  created  by  an  ex  post  facto 
act  of  the  state,  must  not  the  state  court,  in  the  exercise  of  a  juris- 
diction which  has  already  rightfully  attached,  have  a  right  to 
pronounce  on  the  validity  and  sufficiency  of  the  defense?  It 
would  be  extremely  difficult,  upon  any  legal  principles,  to  give  a 
negative  answer  to  these  inquiries.  Innumerable  instances  of 
the  same  sort  might  be  stated  in  illustration  of  the  position ;  and 
unless  the  state  courts  could  sustain  jurisdiction  in  such  cases, 
this  clause  of  the  sixth  article  ^  would  be  without  meaning  or  effect, 
and  public  mischiefs,  of  a  most  enormous  magnitude,  would  in- 
evitably ensue. 

It  must,  therefore,  be  conceded  that  the  constitution  not  only  Appellate 
contemplated,  but  meant  to.  provide  for  cases  within  the  scope  of  f^^^^i" 
the  judicial  power  of  the  United  States,  which  might  yet  depend   courts  ex- 
before  state  tribunals.     It  was  foreseen  that  in  the  exercise  of  their    ^"  ^ '" 

cases  in 

ordinary  jurisdiction,  state  courts  would  incidentally  take  cog-   state  courts 
nizance  of  cases  arising  under  the  constitution,  the  laws  and  treaties  ^*^e':ting  the 
of  the  United  States.     Yet  to  all  these  cases  the  judicial  power,  by   Constitution, 
the  very  terms  of  the  constitution,  is  to  extend.     It  cannot  extend 
by  original  jurisdiction  if  that  was  already  rightfully  and  exclu- 
sively attached  in  the  state  courts,  which  (as  has  been  already 
shown)  may  occur.     It  must,  therefore,  extend  by  appellate  jur- 

'  See  above,  p.  140. 


28o 


American   Government  and   Politics 


isdiction,  or  not  at  all.  It  would  seem  to  follow  that  the  appellate 
power  of  the  United  States  must,  in  such  cases,  extend  to  state 
tribunals;  and  if  in  such  cases,  there  is  no  reason  why  it  should 
not  equally  attach  upon  all  others  within  the  purview  of  the  con- 
stitution. 

It  has  been  argued  that  such  an  appellate  jurisdiction  over  state 
courts  is  inconsistent  with  the  genius  of  our  governments  and  the 
spirit  of  the  constitution.  That  the  latter  was  never  designed  to 
act  upon  state  sovereignties,  but  only  upon  the  people,  and  that  if 
the  power  exists,  it  will  materially  impair  the  sovereignty  of  the 
states,  and  the  independence  of  their  courts.  We  cannot  yield  to 
the  force  of  this  reasoning;  it  assumes  principles  which  we  cannot 
admit,  and  draws  conclusions  to  which  we  do  not  yield  our  assent. 

It  is  a  mistake  that  the  constitution  was  not  designed  to  operate 
upon  states,  in  their  corporate  capacities.  It  is  crowded  with  pro- 
visions which  restrain  or  annul  the  sovereignty  of  the  states  in  some 
of  the  highest  branches  of  their  prerogatives.  The  tenth  section 
of  the  first  article  contains  a  long  list  of  disabilities  and  prohibi- 
tions imposed  upon  the  states.  Surely,  when  such  essential 
portions  of  state  sovereignty  are  taken  away,  or  prohibited  to  be 
exercised,  it  cannot  be  correctly  asserted  that  the  constitution  does 
not  act  upon  the  states.  The  language  of  the  constitution  is  also 
imperative  upon  the  states  as  to  the  performance  of  many  duties. 
It  is  imperative  upon  the  state  legislatures  to  make  laws  prescrib- 
ing the  time,  places,  and  manner  of  holding  elections  for  senators 
and  representatives,  and  for  electors  of  President  and  Vice-Presi- 
dent. And  in  these,  as  well  as  some  other  cases,  Congress  have  a 
right  to  revise,  amend,  or  supersede  the  laws  which  may  be 
passed  by  state  legislatures.  When,  therefore,  the  states  are 
stripped  of  some  of  the  highest  attributes  of  sovereignty,  and  the 
same  are  given  to  the  United  States ;  when  the  legislatures  of  the 
states  are,  in  some  respects,  under  the  control  of  Congress,  and 
in  every  case  are,  under  the  Constitution,  bound  by  the  paramount 
authority  of  the  United  States;  it  is  certainly  difficult  to  support 
the  argument  that  the  appellate  power  over  the  decisions  of  state 


The   Federal  Judiciary 


281 


ity  of 

federal 

decisions. 


courts  is  contrary  to  the  genius  of  our  institutions.  The  courts 
of  the  United  States  can,  without  question,  revise  the  proceedings 
of  the  executive  and  legislative  authorities  of  the  states,  and  if 
they  are  found  to  be  contrary  to  the  constitution,  may  declare  them 
to  be  of  no  legal  validity.  Surely  the  exercise  of  the  same  right 
over  judicial  tribunals  is  not  a  higher  or  more  dangerous  act  of 
sovereign  power.  .  .  . 

A  motive  of  another  kind,  perfectly  compatible  with  the  most  The  desire 
sincere  respect  for  state  tribunals,  might  induce  the  grant  of  appel- 
late power  over  their  decisions.  That  motive  is  the  importance, 
and  even  necessity  of  uniformity  of  decisions  throughout  the  whole 
United  States,  upon  all  subjects  within  the  purview  of  the  consti- 
tution. Judges  of  equal  learning  and  integrity,  in  different  state.^, 
might  differently  interpret  a  statute,  or  a  treaty  of  the  United  States, 
or  even  the  constitution  itself.  If  there  were  no  revising  authority 
to  control  these  jarring  and  discordant  judgments,  and  harmonize 
them  into  uniformity,  the  laws,  the  treaties,  and  the  constitution 
of  the  United  States  would  be  different  in  different  States,  and 
might,  perhaps,  never  have  precisely  the  same  construction,  ob- 
ligation, or  efficacy,  in  any  two  states.  The  public  mischiefs  that 
would  attend  such  a  state  of  things  would  be  truly  deplorable; 
and  it  cannot  be  believed  that  they  could  have  escaped  the  en- 
lightened convention  which  formed  the  constitution.  What, 
indeed,  might  then  have  been  only  prophecy,  has  now  become  fact; 
and  the  appellate  jurisdiction  must  continue  to  be  the  only  ade- 
quate remedy  for  such  evils.  .  .  . 


115.    Jefferson's  Criticism  of  the  Supreme  Court 

Jefferson  claimed  that  the  Supreme  Court's  exercise  of  power 
to  pass  on  the  constitutionality  of  statutes  made  it  the  supreme 
department  in  the  federal  government,  and  he  attacked  the  posi- 
tion of  the  judiciary  in  the  following  manner:  — 

In  denying  the  right  they  usurp,  of  exclusively  explaining  the 
constitution,  I  go  further  than  you  do,  if  I  understand  rightly  your   independent. 


The  three 
departments 
of  govern- 
ment are 
equal  and 


282 


American   Government  and  Politics 


quotation,  from  The  Federalist,  of  an  opinion  that  "the  judiciary  is 
the  last  resort  in  relation  to  the  other  departments  of  the  government, 
but  not  in  relation  to  the  rights  of  the  parties  to  the  compact  under 
which  the  judiciary  is  derived."  If  this  opinion  be  sound,  then 
indeed  is  our  constitution  a  complete /e/o  de  se.  For  intending  to 
estabHsh  three  departments,  co-ordinate  and  independent,  that 
they  might  check  and  balance  one  another,  it  has  given,  according 
to  this  opinion,  to  one  of  them  alone,  the  right  to  prescribe  rules 
for  the  government  of  the  others,  and  to  that  one  too,  which  is 
unelected  by,  and  independent  of  the  nation.  For  experience  has 
already  shown  that  the  impeachment  it  has  provided  is  not  even 
a  scare-crow;  that  such  opinions  as  the  one  you  combat,  sent 
cautiously  out,  as  you  observe  also,  by  detachment,  not  belonging 
to  the  case  often,  but  sought  for  out  of  it,  as  if  to  rally  the  public 
opinion  beforehand  to  their  views,  and  to  indicate  the  line  they 
are  to  walk  in,  have  been  so  quietly  passed  over  as  never  to  have 
excited  animadversion,  even  in  a  speech  of  any  one  of  the  body 
entrusted  with  impeachment. 

The  constitution,  on  this  hypothesis,  is  a  mere  thing  of  wax  in 
the  hands  of  the  judiciary  which  they  may  twist  and  shape  into 
any  form  they  please.  It  should  be  remembered,  as  an  axiom  of 
eternal  truth  in  politics,  that  whatever  power  in  any  government 
is  independent,  is  absolute  also ;  in  theory  only  at  first,  while  the 
spirit  of  the  people  is  up,  but  in  practice,  as  fast  as  that  relaxes. 
Independence  can  be  trusted  nowhere  but  with  the  people  in  mass. 
They  are  inherently  independent  of  all  but  mpral  law.  My  con- 
struction of  the  constitution  is  very  different  from  that  you  quote. 
It  is  that  each  department  is  truly  independent  of  the  others,  and 
has  an  equal  right  to  decide  for  itself  what  is  the  meaning  of  the 
constitution  in  the  cases  submitted  to  its  action;  and  especially, 
where  it  is  to  act  ultimately  and  without  appeal.  I  will  explain 
myself  by  examples,  which,  having  occurred  while  I  was  in  oflSce, 
are  better  known  to  me,  and  the  principles  which  governed 
them.  .  .  . 

The  judiciary  of  the  United  States  is  the  subtle  corps  of  sappers 


of  the 
judiciary. 


The   Federal  Judiciary  283 

and  miners  con.^tandy  working  under  ground  to  undermine  the  The 
foundations  of  our  confederated  fabric.  They  are  construing  8°^^.™"^^"' 
our  constitution  from  a  co-ordination  of  a  general  and  special  the  feet 
government  to  a  general  and  supreme  one  alone.  This  will  lay- 
all  things  at  their  feet,  and  they  are  too  well  versed  in  EngUsh  law 
to  forget  the  maxim,  " boni  judicis  est  ampliare  jiirisdictionem.'"  .  . . 
Having  found,  from  experience,  that  impeachment  is  an  imprac- 
ticable thing,  a  mere  scare-crow,  they  consider  themselves  secure 
for  life;  they  skulk  from  responsibility  to  public  opinion,  the  only 
remaining  hold  on  them,  under  a  practice  first  introduced  into 
England  by  Lord  Mansfield.  An  opinion  is  huddled  up  in  con- 
clave, perhaps  by  a  majority  of  one,  delivered  as  if  unanimous, 
and  with  the  silent  acquiescence  of  lazy  or  timid  associates,  by  a 
crafty  chief  judge,  who  sophisticates  the  law  to  his  mind,  by  the 
turn  of  his  own  reasoning.  ...  A  judiciary  independent  of  a 
king  or  executive  alone,  is  a  good  thing;  but  independence  of  the 
will  of  the  nation  is  a  solecism,  at  least  in  a  republican  government. 

116.    The  Political  Questions  in  Federal  Cases  ^ 

"The  study  of  Constitutional  Law,"  says  Professor  Thayer,  "is 
allied  not  merely  with  history,  but  with  statecraft  and  with  the 
political  problems  of  our  great  and  comj^lex  national  life."  Indeed, 
most  of  the  great  cases  which  come  before  the  Supreme  Court 
involve  questions  of  economic  or  social  policy  rather  than  law  in 
the  strict  sense  of  the  word.  This  fact  is  well  demonstrated  by  the 
following  extract  from  Mr.  Choate's  argument  against  the  income 
tax  delivered  before  the  Supreme  Court  in  1894:  — 

I  look  upon  this  case  with  very  different  eyes  from  those  of  The 
either  the  Attorney  General  or  his  associate  who  has  just  closed.   1"^°;^^ 
I  believe  there  are  private  rights  of  property  here  to  be  protected ;   popuHstic. 
that  we  have  a  right  to  come  to  this  court  and  ask  for  their  protec- 
tion, and  that  this  court  has  a  right,  without  asking  leave  of  the 
Attorney  General  or  of  any  counsel,  to  hear  our  plea.     The  act  of 
Congress  which  we  are  impugning  before  you  is  communistic  in 
its  purposes  and  tendencies,  and  is  defended  here  upon  ])rinciples 


284 


American   Government  and   Politics 


The 

communistic 

march 

must  be 

stopped 

now. 


The 

protection 
of  property 
a  funda- 
mental aim 
of  all 
"overnment. 


The  power 
to  tax  is  not 
the  power  to 
confiscate. 


as  communistic,  socialistic  —  what  shall  I  call  them  —  populistic 
as  ever  have  been  addressed  to  any  political  assembly  in  the  world. 

Did  your  Honors  observe  what  the  learned  counsel  claimed, 
namely,  that  $20,000  might  have  been  made  the  minimum  of  exemp- 
tion of  taxation  of  this  law,  and  there  would  have  been  no  help 
for  it?  If  you  approve  this  law,  with  this  exemption  of  $4,000, 
and  this  communistic  march  goes  on  and  five  years  hence  a  statute 
comes  to  you  with  an  exemption  of  $20,000  and  a  tax  of  20  per  cent 
upon  all  having  incomes  in  excess  of  that  amount,  how  can  you 
meet  it  in  view  of  the  decision  which  my  opponents  ask  you  now  to 
render  ?  There  is  protection  now  or  never.  If  it  goes  out  as  the 
edict  of  this  judicial  tribunal  that  a  combination  of  States,  however 
numerous,  however  unanimous>  can  unite  against  the  safeguards 
provided  by  the  Constitution  in  imposing  a  tax  which  is  to  be  paid 
by  the  people  in  four  States  or  in  three  States  or  in  two  States,  but 
of  which  the  combination  is  to  pay  almost  no  part,  while  in  the 
spending  of  it  they  are  to  have  the  whole  control,  it  will  be  impos- 
sible to  take  any  backward  step.  You  cannot  hereafter  exercise 
any  check  if  you  now  say  that  Congress  is  untrammelled  and 
uncontrollable. 

I  have  thought  that  one  of  the  fundamental  objects  of  all  civi- 
lized government  was  the  preservation  of  the  rights  of  private 
property.  I  have  thought  that  it  was  the  very  keystone  of  the 
arch  upon  which  all  civilized  government  rests,  and  that  this  once 
abandoned,  everything  was  at  stake  and  in  danger.  That  is  what 
Mr.  Webster  said  in  1820,  at  Plymouth,  and  I  supposed  that  all 
educated,  civilized  men  believed  in  that.  According  to  the  doctrines 
that  have  been  propounded  here  this  morning,  even  that  great 
fundamental  principle  has  been  scattered  to  the  winds. 

It  is  not  any  part  of  our  mission  here  to  question  the  power  of 
Congress  to  raise  money  by  taxation.  We  believe  that  Congress 
has  plenary  power  in  the  last  exigencies  of  the  government  to 
reach  every  man,  every  dollar,  every  inch  of  ground,  to  secure  the 
common  defence  and  the  general  welfare ;  that  it  was  the  purpose 
of  the  convention  that  created  the  Constitution  to  give  Congress 


The   Federal  Judiciary  285 

that  power,  and  that  it  is  one  of  the  absolute  essentials  of  a  great 
sovereignty  which  was  to  cover  a  continent  and  to  last  for  untold 
ages.  There  is  no  doubt  about  that.  We  are  perfectly  aware, 
too,  of  the  difficulties  that  lie  in  our  way;  that  it  is  necessary  for 
us  to  show,  in  the  first  place,  either  that  the  power  to  pass  this  act 
was  not  conferred  upon  Congress  or  that  in  passing  it  Congress  has 
exceeded  the  power  entrusted  to  it  by  the  Constitution.  One 
thing  is  certain,  absolutely  certain,  that  although  the  power  was 
given  Congress  to  tax,  no  power  was  given  it  to  confiscate;  and 
that,  the  Attorney  General  and  his  associates  all  admit.  If  this 
is  a  confiscation  under  the  forms  of  law,  there  is  no  power  given  to 
Congress  in  the  Constitution  that  could  by  any  possibility  enable 
it  to  validly  enact  such  a  law.  .  .  . 

The  Attorney  General  says  in  his  brief,  at  page  83,  that  the  rule   The 
of  uniformity  has  been  practically  violated  in  the  act  of  1894,  but   of  "axes 
that  the  law  must  be  regarded  not  as  standing  alone  but  as  a  part   does  not 
of  our  general  system  of  taxation,  and  that  so  regarded  its  effect   yjoi^tion  of 
is  to  bring  about  an  approximation  of  equality  of  taxation.     This   the  Consti- 
is,  as  I  understand  it,  an  unequivocal  admission  that  the  law  in 
itself  is  not  equal  or  uniform  in  its  operation,  but  that  we  may 
speculate  that  perhaps  it  works  out  uniformity  of  tax  burden  upon 
some  theory  or  notion  of  compensation  or  equivalents.     Has  such 
a  doctrine  ever  before  been  advanced  in  this  court  ?     It  amounts 
to  the  claim  on  the  part  of  the  government  that  an  act  of  Congress 
violating  the  Constitution  and  utterly  lacking  in  uniformity  may 
be  upheld  because  some  other  act  or  the  general  tariff  laws  operate 
unequally.     Is  it  true  that  under  the  Constitution  you  can  com- 
pensate for  intentional  inequality  of  burden  in  one  set  of  excises, 
duties,  or  imposts  by  imposing  others  which  are  inherently  lacking 
in  every  essential  element  of  uniformity  ?     Is  this  court  prepared  to 
go  that  length  and  to  enunciate  any  such  construction  of  the 
Constitution?     This  is  a  doctrine  worthy  of  a  Jacobin  club  that 
proposed  to  govern  France;   it  is  worthy  of  a  Czar  of  Russia  pro- 
posing to  reign  with  undisputed  and  absolute  power;   but  it  can- 
not be  done  under  this  Constitution. 


tution. 


286 


American  Government  and  Politics 


The 

momentous 
importance 
of  this 
decision. 


But  I  have  more  than  trespassed  upon  the  kind  indulgence  of 
the  court.  I  have  felt  the  responsibihty  of  this  case  as  I  have  never 
felt  one  before  and  never  expect  to  again.  I  do  not  believe  that 
any  member  of  this  court  ever  sat  or  ever  will  sit  to  hear  and  decide 
a  case  the  consequences  of  which  will  be  so  far-reaching  as  this  — 
not  even  the  venerable  member  who  survives  from  the  early  days 
of  the  civil  war,  and  has  sat  upon  every  question  of  reconstruction, 
of  national  destiny,  of  state  destiny  that  has  come  up  during  the 
last  thirty  years.  No  member  of  this  court  will  live  long  enough 
to  hear  a  case  which  will  involve  a  question  of  more  importance 
than  this,  the  preservation  of  the  fundamental  rights  of  private 
property  and  equality  before  the  law,  and  the  ability  of  the  people 
of  these  United  States  to  rely  upon  the  guaranties  of  the  Constitu- 
tion. If  it  be  true,  as  my  friend  said  in  closing,  that  the  passions 
of  the  people  are  aroused  on  this  subject,  if  it  be  true  that  a  mighty 
army  of  sixty  million  citizens  is  likely  to  be  incensed  by  this 
decision,  it  is  the  more  vital  to  the  future  welfare  of  this  country 
that  this  court  again  resolutely  and  courageously  declare,  as 
Marshall  did,  that  it  has  the  power  to  set  aside  an  act  of  Congress 
violative  of  the  Constitution,  and  that  it  will  not  hesitate  in  exe- 
cuting that  power,  no  matter  what  the  threatened  consequences  of 
popular  or  populistic  wrath  may  be.  With  the  deepest  earnest- 
ness and  confidence  we  submit  that  all  patriotic  Americans  must 
pray  that  our  views  shall  prevail.  We  could  not  magnify  the  scope 
of  your  decision,  whatever  it  may  be.  No  mortal  could  rise  above 
"the  height  of  this  great  argument." 


The  new 
conditions 
of  our 
social  and 
industrial 
life. 


117.    The  Courts  and  Social  Policy 

The  connection  between  constitutional  law  and  social  policy 
is  discussed  in  the  following  manner  by  President  Roosevelt  in  a 
message  to  Congress. 

The  rapid  changes  in  our  social  and  industrial  life  which  have 
attended  this  rapid  growth  have  made  it  necessary  that,  in  apply- 
ing to  concrete  cases,  the  great  rules  of  right  laid  down  in  our 
Constitution,  there  should  be  a  full  understanding  and  apprecia- 


The   Federal  Judiciary  287 

tion  of  the  new  conditions  to  which  the  rules  are  to  be  applied. 
What  would  have  been  an  infringement  upon  liberty  half  a  cen- 
tury ago  may  be  the  necessary  safeguard  of  liberty  to-day.  What 
would  have  been  an  injury  to  property  then  may  be  necessary  to 
the  enjoyment  of  property  now.  Every  judicial  decision  involves 
two  terms  —  one,  an  interpretation  of  the  law;  the  other,  the 
understanding  of  the  facts  to  which  it  is  to  be  applied.  The  great 
mass  of  our  judicial  officers  are,  I  believe,  alive  to  these  changes  of 
conditions  which  so  materially  affect  the  performance  of  their 
judicial  duties.  Our  judicial  system  is  sound  and  effective  at 
core,  and  it  remains,  and  must  ever  be  maintained,  as  the  safe- 
guard of  those  principles  of  liberty  and  justice  which  stand  at  the 
foundation  of  American  institutions;  for,  as  Burke  finely  said, 
when  liberty  and  justice  are  separated,  neither  is  safe. 

There  are,  however,  some  members  of  the  judicial  body  who  Technical 
have  lagged  behind  in  their  understanding  of  these  great  and  vital  reaufberty. 
changes  in  the  body  politic,  whose  minds  have  never  been  opened 
to  the  new  applications  of  the  old  principles  made  necessary  by 
the  new  conditions.  Judges  of  this  stamp  do  lasting  harm  by 
their  decisions,  because  they  convince  poor  men  in  need  of  pro- 
tection that  the  courts  of  the  land  are  profoundly  ignorant  of  and 
out  of  sympathy  with  their  deeds,  and  profoundly  indifferent  or 
hostile  to  any  proposed  remedy.  To  such  men  it  seems  a  cruel 
mockery  to  have  any  court  decide  against  them  on  the  ground 
that  it  desires  to  preserve  "liberty"  in  a  purely  technical  form, 
by  withholding  liberty  in  any  real  and  constructive  sense.  It  is 
desirable  that  the  legislative  body  should  possess,  and  wherever 
necessary  exercise,  the  power  to  determine  whether  in  a  given  case 
employers  and  employees  are  not  on  an  equal  footing,  so  that  the 
necessities  of  the  latter  compel  them  to  submit  to  such  exactions 
as  to  hours  and  conditions  of  labor  as  unduly  to  tax  their  strength ; 
and  only  mischief  can  result  when  such  determination  is  upset 
on  the  ground  that  there  must  be  no  "interference  with  the  liberty 
to  contract  "  —  often  a  merely  academic  "liberty,"  the  exercise  of 
which  is  the  negation  of  real  liberty. 


288 


American  Government  and   Politics 


The  chief  lawmakers  in  our  country  may  be,  and  often  are, 
the  judges,  because  they  are  the  final  seat  of  authority.  Every 
time  they  interpret  contract,  property,  vested  rights,  due  process  of 
law,  liberty,  they  necessarily  enact  into  law  parts  of  a  system  of 
social  philosophy;  and  as  such  interpretation  is  fundamental,  they 
give  direction  to  all  law-making.  The  decisions  of  the  courts  on 
economic  and  social  questions  depend  upon  their  economic  and 
social  philosophy ;  and  for  the  peaceful  progress  of  our  people  during 
the  twentieth  century  we  shall  owe  most  to  those  judges  w^ho  hold 
to  a  twentieth-century  economic  and  social  philosophy  and  not  to 
a  long  outgrown  philosophy,  which  was  itself  the  product  of  primi- 
tive economic  conditions.  Of  course  a  judge's  views  on  progressive 
social  philosophy  are  entirely  second  in  importance  to  his  possession 
of  a  high  and  fine  character;  which  means  the  possession  of  such 
elementary  virtues  as  honesty,  courage,  and  fairmindedness.  The 
judge  who  owes  his  election  to  pandering  to  demagogic  sentiments 
or  class  hatreds  and  prejudices,  and  the  judge  who  owes  either  his 
election  or  his  appointment  to  the  money  or  the  favor  of  a  great 
corporation,  are  alike  unworthy  to  sit  on  the  bench,  are  alike 
traitors  to  the  people ;  and  no  profundity  of  legal  learning,  or 
correctness  of  abstract  conviction  on  questions  of  public  policy, 
can  serve  as  an  offset  to  such  shortcomings.  But  it  is  also 
true  that  judges,  like  e.xecutives  and  legislators,  should  hold 
sound  views  on  the  questions  of  public  policy  which  are  of  vital 
interest  to  the  people. 


The 

supremacy 
of  the 
judiciary 
an  American 
idea. 


ii8.    The  Place  of  the  Supreme  Court  in  Our  System 

The  American  theory  as  to  the  function  of  the  judiciary  is  thus 
admirably  summed  up  by  Mr.  Sherley  in  a  speech  made  in  the 
House  of  Representatives :  — 

We  live  under  a  peculiar  government,  due  to  its  dual  character 
and  limited  power.  We  have  to  determine  in  this  country  not  only 
what  we  ought  to  do,  but  what  we  can  do,  because  we  have  a 
government,  limited  both  as  to  which  sovereignty  shall  exercise 


The  Federal  Judiciary  289 

the  power  and  limited  also  as  to  what  matters  can  be  dealt  with  at 
all.  The  one  important  original  idea  contained  in  the  Constitu- 
tion of  the  United  States  is  the  supremacy  given  to  the  judiciary. 
The  thing  that  makes  our  constitution  unique  from  every  one  in 
the  world  is  the  fact  that  the  Supreme  Court  of  the  United  States 
is  given  power  to  say  whether  the  other  branches  of  the  government 
have  exceeded  their  power;  has  the  right  to  declare  null  and  void 
an  act  of  the  legislature  of  the  national  Government;  has  the  right 
to  have  disregarded  the  action  of  the  executive  when  it  is  beyond 
his  power;  and  has  the  further  right  to  say  when  the  states  have 
exceeded  their  sovereign  powers.  That  is  the  greatest  power  ever 
given  to  a  tribunal  and  it  is  as  I  have  said  the  one  great  charac- 
teristic of  the  American  consdtution,  and  to  it  we  owe  more  of  the 
stability  and  grandeur  of  this  country  than  to  any  other  provision 
in  that  instrument.  .  .  . 

There  have  been  times  when  the  decisions  of  this  court  in  the  The 

.  ,  ,  .  court  is 

performance  of  its  great  functions  have  aroused  great  excitement  generally 
and  at  times  great  indignation ;  but  with  the  exception  of  the  Dred  supported 
Scott  case  nearly  every  decision  of  that  court  undertaking  to  lay  nation, 
down  the  limits  of  national  and  state  power  has  met  with  the  final 
approval  of  the  American  people;  and  to-day  it  may  not  be  in- 
appropriate when  it  has  become  the  fashion  of  some  of  those  in 
high  places  to  criticise  the  judiciary,  to  call  attention  to  these  facts. 
Certainly,  no  man  from  my  section  of  the  country  should  ever  care 
to  utter  a  condemnation  of  the  judiciary,  for  when  passion  ran 
riot,  when  men  had  lost  their  judgment,  when  the  results  of  four 
years  of  bitter  war  produced  legislation  aimed  not  at  justice,  but 
frequently  at  punishment,  it  was  the  Supreme  Court  that  stood 
between  the  citizen  and  his  liberties  and  the  passion  of  the  hour 
[applause]  and  I  trust  the  day  will  never  come  when  the  American 
people  will  not  be  willing  to  submit  respectfully  and  gladly  to  the 
decrees  of  that  august  tribunal.  Temporarily  they  may  seem  to 
thwart  the  will  of  the  people  but  in  their  final  analysis  they  will 
make  as  they  have  made  for  orderly  government,  for  govern- 
ment of  laws  and  not  of  men,  and  we  may  be  sure  that  the 
u 


2QO  American   Government  and   Politics 

Supreme  Court  in  the  pure  atmosphere  of  judicial  inquiry  that 
has  always  surrounded  it  will  arrive  at  a  better  interpreta- 
tion of  the  powers  of  both  state  and  national  governments  than 
can  be  possibly  hoped  for  in  a  forum  like  this  where  popular 
prejudice  and  the  passions  of  the  hour  affect  all  of  us  whether 
we  will  or  no. 


CHAPTER  XVI 

FOREIGN  AFFAIRS 

119.    The  Organization  of  the  Department  of  State 

By  giving  the  President  the  power  to  appoint  our  representatives 
abroad  and  to  negotiate  treaties  in  conjunction  with  the  Senate, 
and  also  the  right  to  receive  the  ambassadors  and  other  public 
ministers  of  foreign  countries,  the  federal  Constitution  has  made  him 
the  official  spokesman  of  the  nation  in  dealing  with  other  countries.* 
To  aid  the  President  in  the  discharge  of  the  important  duties 
connected  with  this  position,  Congress  created  in  July,  1789,  a 
Department  of  Foreign  Affairs  which,  in  September  of  the  same 
year,  was  changed  to  the  Department  of  State  with  a  Secretary  of 
State  at  its  head.  The  duties  of  the  Secretary,  however,  with 
regard  to  foreign  matters,  are  still  those  laid  down  in  the  original 
statute: — 

There  shall  be  at  the  seat  of  Government  an  Executive  Depart-   The 
ment,  to  be  known  as  the  Department  of  State,  and  a  Secretary  of  "^sLTand 
of  State  who  shall  be  the  head  thereof.  ...  his  duties. 

The  Secretary  of  State  shall  perform  such  duties  as  shall  from 
time  to  time  be  enjoined  on  or  intrusted  to  him  by  the  President, 
relative  to  correspondences,  commissions  or  instructions  to  or  with 
public  ministers  or  consuls,  from  the  United  States,  or  to  negotia- 
tions with  public  ministers  from  foreign  states  or  princes,  or  to 
memorials  or  other  applications  from  foreign  public  ministers  or 
other  foreigners,  or  to  such  other  matters  respecting  foreign  affairs, 
as  the  President  of  the  United  States  shall  assign  to  the  said  De- 
partment ;  and  furthermore  he  shall  conduct  the  business  of  the 
Department  in  such  manner  as  the  President  of  the  United 
States  shall  direct. 

'  See  above,  Chap.  IX. 
291 


292 


American   Government  and   Politics 


120.    Duties  and  Responsibilities  of  Diplomatic  Representatives^ 

The  representation  of  the  nation  abroad  is  committed  to  the 
charge  of  two  groups  of  officers  :  diplomatic  and  consular.  It  has 
often  been  contended  that  with  the  development  of  rapid  means  of 
communication,  the  maintenance  of  diplomatic  representation  has 
become  an  unnecessary  luxury  subserving  no  practical  purposes/ 
but  in  the  following  paper,  the  Hon.  Andrew  D.  White  makes  a 
strong  argument  in  favor  of  continuing  the  custom  by  showing  the 
important  duties  which  still  fall  upon  a  diplomatic  officer. 

Some  years  since,  a  very  eminent  American  journalist,  in  dis- 
cussing our  diplomatic  service,  proposed  what  he  was  pleased  to 
call  "a  reform."  His  plan  was  exceedingly  drastic.  For  it  was 
nothing  less  than  that  the  entire  system  be  extirpated,  root  and 
branch,  —  in  fact,  "reformed  off  the  face  of  the  earth,"  and  that 
in  place  of  it,  whenever  our  government  should  have  any  business 
with  any  other,  it  should  seek  out  a  suitable  agent,  make  a  fair 
bargain  with  him  for  his  services,  send  him  to  attend  to  the  matter, 
and  then  recall  him  as  soon  as  he  had  finished  it.  Although  this 
advice  has  often  been  cited  as  a  piece  of  political  wisdom,  has  lin- 
gered vaguely  in  the  public  mind,  and  has,  indeed,  been  recently 
sanctioned  by  a  very  eminent  American  citizen,  it  seems  not  diffi- 
cult to  show  that  such  a  departure  from  the  practice  of  the  whole 
civilized  world  would  be  a  misfortune,  —  not  only  to  our  country 
in  general,  but  especially  to  our  political,  commercial,  and  finan- 
cial interests. 

For  in  view  of  all  the  interests  of  our  country,  ever  extending, 
ever  becoming  more  complex,  ever  demanding  more  and  more 
quick  sight  and  prompt  action,  what  is  it  that  we  need?  Is  it 
men  to  be  sought  and  selected  and  passed  upon  and  haggled 
with  and  sent  across  the  ocean  to  see  if,  perhaps,  they  can  mitigate 
serious  and  even  disastrous  international  trouble  after  it  has  got 
under  full  headway?  Is  it  not  rather  to  have  thoroughly  trained 
men  on  the  spot,  who  shall  foresee  trouble,  prevent  it,  attenuate  it, 

*  See  Foster,  The  Practice  of  Diplomacy,  p.  15. 


Foreign  Affairs  293 

disperse  it,  be  in  touch  with  the  right  men,  know  the  right  means, 
speak  the  right  word,  at  the  right  moment,  in  the  right  quarter? 
Some  years  since,  at  Constantinople,  I  asked  the  cause  of  the 
widespread  conflagrations  which  had  so  often  devastated  that 
capital.  The  answer  was  that  the  city  had  a  very  peculiar  fire 
department  —  that  when  a  fire  broke  out  in  any  house,  the  proper 
and  usual  way  was  for  its  owner  to  seek  someone  who  owned  a 
hand  fire  engine,  to  find,  by  proper  examination  whether  he  was 
trustworthy,  whether  his  helpers  were  robust,  whether  his  fire 
apparatus  was  effective;  and  then  to  make  a  bargain  with  him 
and  his  helpers  and  conduct  them  to  the  fire.  There  was  usually, 
so  I  was  informed,  not  much  trouble  in  finding  the  fire,  for,  by  the 
time  the  machine  had  been  approved  and  the  firemen  selected  and 
bargained  with  and  got  to  the  spot,  the  conflagration  was  amply 
evident. 

A  special  reason  for  the  maintenance  of  an  organized  diplomatic   Assistance 

.     -  1  .       1  1     r         1  •  i-r    •  •  TT  Jn  making 

service  is  found  in  the  need  or  making  or  moditying  treaties.     Here   ai,j  modify- 

it  is  that  a  minister  permanently  residing  at  a  foreign  court  has  a   ing  treaties. 

decided  advantage.     He  notes  the  progress  of  aft"airs,  watches  for 

opportunities,  makes  the  acquaintance  of  statesmen  and  other  men 

of  influence  in  the  country  to  which  he  is  accredited,  and  thus  is 

able  to  suggest  and  to  secure  treaties  and  modifications  of  treaties 

much  earlier  and  more  easily  than  could  possibly  be  done  from  the 

centre  of  a  distant  government.     Even  if  special  commissioners 

be  sent  to  make  a  treaty,  a  resident  representative  is  sure  to  be  of 

the  utmost  value. 

Another  duty  of  our  foreign  representatives  is  the  collection  of  The 

.    .  ...  ,         "  .  .  collection 

information  bearing  on  large  questions  important  to  our  country,  ^f  important 
Of  this  information,  that  which  relates  to  the  actions  of  foreign  information, 
powers  in  anticipated  crises  is  frequently  of  the  utmost  importance. 
Grant  that  our  diplomats  have  not  the  prophetic  gift,  still  at  every 
time  since  the  formation  of  this  government,  and  never  more  than 
now,  it  has  been  of  great  importance  to  this  country,  politically 
and  commercially,  to  have  at  various  centres  of  information  through- 
out the  world,  thinking  men  with  access  to  the  best  sources  of 


294 


American   Government  and   Politics 


news,  who  can  constantly  keep  the  home  government  advised  as  to 
the  probable  action  of  foreign  powers.  At  this  moment,  when 
Europe  is  one  great  group  of  fortified  camps  and  great  changes  are 
taking  place  in  Asia  and  Africa,  and  troublesome  questions  are 
rising  in  South  America,  it  cannot  but  be  of  immense  value  to  our 
manufacturing,  commercial,  and  indeed  all  other  interests  to  have 
the  best  and  most  recent  information  regarding  the  outcome  of 
warlike  operations,  the  drift  of  public  opinion,  and  settlements 
likely  to  be  made ;  and  such  information  is  obtained  by  our  repre- 
sentatives at  the  lesser  capitals  almost  as  frequently  as  at  the  greater. 

Then,  too,  there  are  other  subjects  of  importance.  Every  year 
our  State  Department  issues  sundry  volumes  entitled  "Diplo- 
matic Relations."  These  are  made  up  of  selections  from  the  dis- 
patches of  our  representatives  abroad.  Among  these  are  found 
not  only  dispatches  on  current  international  business,  but  valuable 
reports  on  leading  subjects  of  public  interest ;  and  of  these  I  may 
mention  in  recent  times,  reports  on  systems  of  finance  in  foreign 
countries,  on  their  supply  and  management  of  their  circulating 
medium;  on  the  administration  of  cities;  on  government  railway 
systems;  on  public  museums,  on  educational  institutions  and  the 
like.  It  may  be  said  that  the  newspapers  and  magazines  give  us 
these;  but  the  difficulty  is  that  information  thus  supplied  is  too 
frequently  sketchy  and  scrappy.  I  do  not  underrate  the  newspaper 
correspondent ;  he  is  one  of  the  wonders  of  the  world ;  but,  after 
all,  the  diplomatic  representative  has  certain  decided  advantages: 
he  has  easy  access  to  men  controlling  every  sort  of  institution,  he 
can  ask  for  interviews,  information,  documents  and  the  like  with 
every  probability  of  obtaining  them,  and  this  is  not  the  case  with 
the  great  majority  of  unoflicial  persons. 

Another  duty  of  a  foreign  representative  of  our  country  is  to 
protect  Americans  within  the  country  to  which  he  is  accredited. 
No  doubt  there  are  many  in  our  own  land  who  care  little  for  this : 
it  is  very  easy  to  say  in  an  off-hand  way,  that  if  people  go  abroad  as 
missionaries  or  for  business,  health  or  pleasure,  they  must  take  their 
chances;  but  as  civilization  has  developed  there  has  been  evolved 


Foreign   Affairs 


1<^S 


a  better  feeling  which  I  trust  may  become  deep  and  permanent 
throughout  the  country,  and  that  is  that  our  citizens  are  to  be  fully 
protected  in  all  parts  of  the  world  at  any  cost.  The  famous  boast 
"I  am  a  Roman  citizen,"  which  was  the  passport  and  armor  of  the 
Roman  in  any  part  of  the  world  gives  the  idea  of  what  ought  to  be 
the  claim  of  the  American  citizen.  Our  own  history  in  this  respect 
has  at  times  been  creditable  to  us,  but  here  too  our  mother  country 
sets  the  world  an  example.  Let  any  British  subject  in  any  part  of 
the  world  be  maltreated  and  immediately  it  is  a  matter  of  interest 
to  the  home  government.  The  resident  minister  feels  himself 
false  to  his  duty,  or,  if  he  does  not  feel  so,  knows  that  he  will  surely 
be  denounced  by  the  press  and  in  Parliament,  if  he  be  remiss  in 
securing  redress  for  any  wrong  thus  committed. 

Still  another  of  the  functions  of  an  American  diplomatic  repre-   Cooperation 

.  ,      1  1        r  1  •  with  the 

sentative  is  to  cooperate  with  the  consuls  of  his  government,  pro-  consuls. 
moting  by  all  honorable  means  the  interests  of  American  agricul- 
ture, manufactures,  and  commerce.  The  value  of  this  kind  of 
service  was  amply  shown  by  the  late  Townsend  Harris  in  Japan. 
.  .  .  To  him,  more  than  to  any  other  man,  is  due  the  opening  of 
Japan  to  the  commerce  of  America  and  of  the  world.  His  high 
character  and  skill  inspired  a  confidence  which  enabled  him  to  make 
that  great  treaty  which  marks  a  new  point  of  departure  in  modern 
civilization.  .  .  . 


121.   Expenses  Connected  with  Ambassadorial  Rank 

Until  1893,  the  United  States  was  content  to  be  represented 
abroad  by  the  more  modest  official  bearing  the  title  of  minister, 
but  in  that  year  the  dignity  of  ambassador  was  established  without 
any  provision  for  larger  salaries.  The  increased  expense  con- 
nected with  the  maintenance  of  this  higher  dignity  has  been  the 
subject  of  great  discussion  in  and  out  of  Congress.  The  necessity 
of  making  adequate  provision  for  our  ambassadors  is  thus  urged  by 
Mr.  Lodge  in  a  speech  made  in  the  Senate  in  1908. 

It  is  impossible  practically  for  an  ambassador  to  live  in  a  small 
apartment  in  Paris  or  Berlin  and  transact  the  business  of  the  govern- 


The 

demands 
on  the 
ambassador. 


296 


American   Government  and   Politics 


ment  of  the  United  States  as  it  ought  to  be  transacted.  The  de- 
mands do  not  come  simply  from  the  court  or  the  society  in  which 
he  finds  himself,  but  the  demands  made  by  his  own  people  are 
very  great  indeed.  They  expect  certain  public  receptions  to  be 
held  on  Washington's  birthday  and  on  the  Fourth  of  July;  they 
expect  hospitality  from  the  ambassador.  The  number  of  Ameri- 
cans who  go  to  these  great  capitals  in  Europe  is  very  large ;  it  is 
said  that  there  are  sixty  thousand  Americans  normally  in  London 
alone ;  and  an  ambassador  cannot  escape  the  expenditure  of  a  large 
amount  of  money. 

Now,  Mr.  President,  if  we  give  to  our  ambassadors  their  rent 
in  addition  to  the  salary  they  already  have,  it  would  certainly  make 
living  much  easier  for  them;  also  it  would  give  to  the  United  States 
a  definite  place  in  the  city;  it  would  give  the  embassy  a  definite 
home ;  and  it  would  estabhsh  what  I  consider  a  proper  scale  be- 
cause it  is  not  merely  that  an  ambassador  is  forced,  if  he  is  a  poor 
man,  to  live  below  the  scale  that  he  would  like  to  adopt,  but  there 
are  cases  I  have  in  mind  where  men  of  great  wealth  have  taken 
houses  and  established  a  scale  of  living  which  puts  the  successor 
in  a  position  of  great  embarrassment.  At  least  we  should  secure 
that  the  successive  American  ambassadors  to  any  one  country 
should  live  in  the  same  house  and  should  maintain  substantially 
the  same  scale.  I  do  not  think  it  is  decent  for  a  country  as  rich 
as  the  United  States  to  send  its  ambassadors  abroad  as  they  are 
sent  now,  even  if  they  have  abundant  money,  to  pass  six  months,  a 
year  or  eighteen  months  in  looking  for  a  suitable  place  to  house 
themselves. 

You  have  all  heard  the  story  of  Mr.  Choate  and  what  he  is 
reported  to  have  said  in  a  speech  at  a  dinner.  He  said  he  wished 
to  compliment  the  police  of  London;  that  on  the  night  of  his  ar- 
rival in  London  it  was  very  rainy.  He  was  wandering  about  the 
streets  and  a  policeman  stopped  him  and  said,  "What  are  you 
doing  here  ?  "  He  said,  "I  am  just  wandering  about  the  streets." 
The  policeman  said,  "You  must  not  do  that;  you  must  go  home." 
"Why,"  said  Mr.  Choate,  "I  have  no  home;   I  am  the  American 


Foreign  Affairs  297 

ambassador."     [Laughter.]     That  is  an  exaggerated  way  of  stating 
what  is  an  actual  fact. 

The  really  serious  thing  to   my  mind  is  that  the  inevitable   ^oo""  ^^'^ 
tendency  of  this  perfectly  inadequate  salary  is  to  compel  the  giving  from  the 
of  these  offices  exclusively  to  men  of  great  wealth.     The  average   service. 
man,  even  a  man  who  has  got  a  fair  income  of  his  own,  knowing 
what  expenditure  these  places  require,  does  not  want  to  go  there, 
and  live  in  a  "two  pair  back."     If  he  is  going  to  represent  his 
country  at  all,  he  wants  to  do  it  properly  and  generously  and  as  it 
should  be  represented,  and  men  decline  those  places  because  they 
cannot  face  the  great  expense. 

122.    The  Negotiation  of  Treaties 

The  power  of  making  treaties  "  by  and  with  the  advice  and  con- 
sent of  the  Senate"  is  conferred  on  the  President  by  the  Constitu- 
tion, but  it  is  nowhere  definitely  stated  that  the  necessity  of  having 
the  advice  and  consent  of  the  Senate  requires  the  President  to 
consult  that  body  during  the  negotiation  of  any  particular  treaty. 
In  the  following  paper,  Mr.  Lodge  shows  how  the  Senate  has  shared 
in  the  making  of  treaties  from  the  beginning  of  our  government :  — 

The  Senate,  being  primarily  a  legislative  body,  cannot  in  the   The  right 
nature  of  things  initiate  a  negotiation  with  another  nation,  for   senate  to 
they  have  no  authority  to  appoint  or  receive  ambassadors  or  minis-   advise  and 
ters.     But  in  every  other  respect,  under  the  language  of  the  Con-   negotiations, 
stitution  and  in  the  intent  of  the  framers,  they  stand  on  a  perfect 
equality  with  the  President  in  the  making  of  treaties.     They  have 
an  undoubted  right  to  recommend  either  that  a  negotiation  be 
entered  upon  or  that  it  be  not  undertaken,  and  I  shall  show  pres- 
ently that  this  right  has  been  exercised  and  recognized  in  both 
directions.     As  a  matter  of  course,  the  President  would  not  be 
bound  by  a  resolution  declaring  against  opening  a  negotiation, 
but  such  a  resolution  passed  by  a  two-thirds  vote  would  probably 
be  effective  and  would  serve  to  stop  any  proposed  negotiation,  as 
we  shall  see  was  the  case  under  President  Lincoln.     In  the  same 
way  the  Senate  has  the  right  to  advise  the  President  to  enter  upon 


298 


American   Government  and   Politics 


The  right 
of  the 
Senate  to 
share  in 
treaty 
making  at 
any  stage. 


Washing- 
ton's 
practice. 


a  negotiation,  and  has  exercised  this  right  more  than  once.  Here, 
again,  the  President  is  not  bound  to  comply  with  the  resolution, 
for  his  power  is  equal  and  coordinate  with  that  of  the  Senate,  but 
such  an  action  on  the  part  of  the  Senate,  no  doubt,  would  always 
have  due  weight.  That  this  right  to  advise  or  disapprove  the 
opening  of  negotiations  has  been  very  rarely  exercised  is  unques- 
tionably true  in  practice,  and  the  practice  is  both  sound  and  wise; 
but  the  right  remains  none  the  less,  just  as  the  Constitution  gave 
it,  not  impaired  in  any  way  by  the  fact  that  it  has  been  but  little 
used. 

The  right  of  the  Senate  to  share  in  treaty  making  at  any  stage 
has  always  been  fully  recognized,  both  by  the  Senate  and  the 
Executive,  not  only  at  the  beginning  of  the  government,  when  the 
President  and  many  Senators  were  drawn  from  among  the  framers 
of  the  Constitution  and  were,  therefore,  familiar  with  their  inten- 
tions, but  at  all  periods  since.  A  brief  review  of  some  of  the  mes- 
sages of  the  Presidents  and  of  certain  resolutions  of  the  Senate  will 
show  better  than  any  description  the  relations  between  the  two 
branches  of  the  treaty-making  power  in  the  United  States,  the 
uniform  interpretation  of  the  Constitution  in  this  respect,  and  the 
precedents  which  have  been  established. 

On  August  21,  1789,  President  Washington  notified  the  Senate 
that  he  would  meet  with  them  on  the  following  day  to  advise  with 
them  as  to  the  terms  of  a  treaty  to  be  negotiated  with  the  Southern 
Indians.  On  August  22,  in  accordance  with  this  notice,  the  Presi- 
dent came  into  the  Senate  Chamber,  attended  by  General  Knox, 
and  laid  before  the  Senate  a  statement  of  the  facts,  together  with 
certain  questions,  in  regard  to  our  relations  to  the  Indians  of  the 
Southern  district,  upon  which  he  asked  the  advice  of  the  Senate. 
On  August  24,  1789,  he  appeared  again  in  the  Senate  Chamber 
with  General  Knox,  and  the  discussion  of  our  relations  with  the 
Southern  Indians  was  resumed.  The  Senate  finally  voted  on  the 
questions  put  to  it  by  the  President,  and  in  that  way  gave  him 
their  advice.  .  .  . 

President  Arthur,  on  June  9,  1884,  asked  the  advice  of  the  Senate 


Foreign  Affairs  299 

as  to  directing  negotiations  in  process  with  the  King  of  Hawaii   Later 

tjrcccQCiits 

for  the  extension  of  the  existing  reciprocity  treaty  with  the  Hawaiian 
Islands.  On  March  3,  1888,  the  Senate  passed  a  resolution  ask- 
ing President  Cleveland  to  open  negotiations  with  China  for  the 
regulation  of  immigration  with  that  country.  President  Cleve- 
land replied  that  such  negotiations  had  been  undertaken.  From 
these  various  examples  it  will  be  seen  that  the  Senate  has  been 
consulted  at  all  stages  of  negotiations  by  Presidents  of  all  parties, 
from  Washington  to  Arthur.  .  .  . 

The  power  of  the  Senate  to  amend  or  to  ratify  conditionally  '^^^  "s^* 
is  of  course  included  in  the  larger  powers  expressly  granted  by  the 
Constitution  to  reject  or  to  confirm.  It  would  have  never  occurred 
to  me  that  anyone  who  had  read  the  Constitution  and  who  pos- 
sessed even  the  most  superficial  acquaintance,  with  the  history  of 
the  United  States  could  doubt  the  right  of  the  Senate  to  amend.  .  .  . 

Notwithstanding  the  general  practice  of  cooperation  between  the 
President  and  Senate  in  the  negotiation  of  treaties,  Mr.  Spooner 
ably  contends  that,  as  a  matter  of  constitutional  right,  the  Senate 
has  no  claim  to  interference  in  treaty  negotiations :  — 


The  words  "advice  and  consent  of  the  Senate  "  are  used  in  the   The  absolute 
Constitution  with  reference  to  the  Senate's  participation  in  the   negotiation 
making  of  a  treaty  and  are  well  translated  by  the  word  "ratifica-   vested 
tion  "  popularly  used  in  this  connection.     The  President  nego-   pj-ggij^nt 
tiates  the  treaty,  to  begin  with.     He  may  employ  such  agencies  as 
he  chooses  to  negotiate  the  proposed  treaty.     He  may  employ  the 
ambassador,  if  there  be  one,  or  a  minister  or  a  charge  d'affaires, 
or  he  may  use  a  person  in  private  life  whom  he  thinks  by  his  skill 
or  knowledge  of  the  language  or  people  of  the  country  with  which 
he  is  about  to  deal  is  best  fitted  to  negotiate  the  treaty.     He  may 
issue  to  the  agent  chosen  by  him  —  and  neither  Congress  nor  the 
Senate  has  any  concern  as  to  whom  he  chooses  —  such  instructions 
as  seem  to  him  wise.     He  may  vary  them  from  day  to  day.     That  is 
liis  concern.     The  Senate  has  no  right  to  demand  that  he  shall  un- 
fold to  the  world  or  to  it,  even  in  executive  session,  his  instructions, 


300 


American  Government  and   Politics 


The  position 
of  the 
Foreign 
Relations 
Committee. 


or  the  prospect  or  progress  of  the  negotiation.  I  said  "right." 
I  use  that  word  advisedly  in  order  to  illustrate  what  all  men  who 
have  studied  the  subject  are  willing  to  concede  —  that  under  the 
Constitution  the  absolute  power  of  negotiation  is  in  the  President 
and  the  means  of  negotiation  subject  wholly  to  his  will  and  his 
judgment. 

When  he  shall  have  negotiated  and  sent  his  proposed  treaty 
to  the  Senate  the  jurisdiction  of  this  body  attaches  and  its  power 
begins.  It  may  advise  and  consent,  or  it  may  refuse.  And  in 
the  exercise  of  this  function  it  is  as  independent  of  the  Executive 
as  he  is  independent  of  it  in  the  matter  of  negotiation. 

I  do  not  deny  the  power  of  the  Senate  either  in  legislative  or 
in  executive  session  —  that  is  a  question  of  propriety  —  to  pass  a 
resolution  expressive  of  its  opinion  as  to  matters  of  foreign  policy. 
But  if  it  is  passed  by  the  Senate  or  by  the  House  or  by  both  Houses 
it  is  beyond  any  possible  question  purely  advisory,  and  not  in  the 
slightest  degree  binding  in  law  or  conscience  upon  the  President. 
It  is  easy  to  conceive  of  circumstances  in  which  to  pass  in  legislative 
session  a  resolution  like  that  first  introduced  by  my  distinguished 
and  learned  friend,  the  Senator  from  Georgia  (Mr.  Bacon),  asking 
the  President,  if  in  his  opinion  not  incompatible  with  the  public 
good,  to  transmit  the  correspondence  in  a  pending  negotiation  to 
the  Senate,  might  be  productive  of  mischief.  I  think  the  Morocco 
case  is  perhaps  one  which  could  be  productive  of  mischief  in  this, 
that  the  President's  declination,  which  would  be  within  his  power, 
upon  the  ground  that  the  public  good  required  that  the  correspond- 
ence should  not  be  sent  to  the  Senate,  might  give  rise  to  an  infer- 
ence in  other  countries  that  something  with  reference  to  one  or 
more  of  the  parties  was  being  concealed  from  them.  .  .  . 

The  relation  of  members  of  the  Foreign  Relations  Committee 
to  the  executive  department  of  the  Government  in  its  relation  to 
foreign  relations  is  precisely  the  relation  which  the  Senator  from 
South  Carolina  and  his  colleagues  sustain  to  the  executive  depart- 
ment in  its  relation  to  foreign  relations.  The  Committee  on  Foreign 
Relations,  Hke  the  other  committees  of  this  body,  is  not  an  indc- 


Foreign  Affairs  301 

pendent  entity.  Its  members  are  Senators  who  are  designated 
by  the  body  to  study  and  report  upon  certain  subjects  and  the  com- 
mittee is  therefore  but  the  servant  of  the  Senate,  as  all  other  com- 
mittees are.  A  member  of  the  Foreign  Relations  Committee,  as 
a  Senator,  in  his  relation  to  the  Senate  and  executive  department 
is  only  a  Senator,  just  as  those  who  are  not  on  that  committee  are 
Senators.  Of  course  it  will  sometimes  happen  that  members  of 
the  Foreign  Relations  Committee,  charged  by  the  Senate  with  that 
particular  subject,  will  obtain  information  as  servants  of  the  Senate, 
in  order  to  bring  it  to  the  attention  of  the  Senate,  which  other 
Senators  might  not  seek ;  but  that  is  all.  .  .  . 

The  President  is    so  supreme    under    the   Constitution  in  the   The 
matter  of  treaties,  excluding  only  the  Senate's  ratification,  that  he   ^^y  gygjj 
may  negotiate  a  treaty,  he  may  send  it  to  the  Senate,  it  may  receive   disregard 
by  way  of  "advice  and  consent"  the  unanimous  judgment  of  the   treaty  ^ 
Senate  that  it  is  in  the  highest  degree  for  the  public  interest,  and 
yet  the  President  is  as  free  when  it  is  sent  back  to  the  White  House 
with  a  resolution  of  ratification  attached  to  put  it  in  his  desk  never 
again  to  see  the  light  of  day  as  he  was  free  to  determine  in  the  first 
instance  whether  he  would  or  would  not  negotiate  it.     That  power 
is  not  expressly  given  to  the  President  by  the  Constitution,  but  it 
inheres  in  the  executive  power  conferred  upon  him  to  conduct  our 
foreign  relations,  and  it  is  a  power  which  inheres  in  him  as  the  sole 
organ  under  the  Constitution  through  whom  our  foreign  relations 
and  diplomatic  intercourse  are  conducted.     Out  of  public  neces- 
sity the  President  should  be  permitted  to  pocket  a  treaty,  no  matter 
if  every  member  of  the  Senate  thought  he  ought  to  exchange  the 
ratification. 

Why?     Because  the  President,  through  the  ambassadors,  minis-   The 

President's 

ters,  consuls,  and  all  of  the  agencies  of  the  Government,  explores   pecuHar 
sources  of  information  everywhere,  it  is  his  business  to  know  whether  position, 
anything  has  occurred  since  the  Senate  acted  upon  the  treaty 
which  would  render  it  for  the  public  interest  that  the  ratifications 
be  not  exchanged.     And  he  is  empowered  to  withhold  exchange  of 
ratifications,  if  upon  later  knowledge  he  deems  it  for  the  pubHc 


302  American  Government  and  Politics 

interest  to  do  so.  The  conduct  of  our  foreign  relations  is  a  func- 
tion which  requires  quick  initiative,  and  the  Senate  is  often  in 
vacation.  It  is  a  power  that  requires  celerity.  One  course  of 
action  may  be  demanded  to-night,  another  in  the  morning.  It 
requires  also  secrecy;  and  that  element  is  not  omitted  by  the  com- 
mentators on  the  Constitution  as  having  been  deemed  by  the  fram- 
ers  of  the  most  vital  importance.  It  is  too  obvious  to  make  elabo- 
ration pardonable. 

We  ratified  the  arbitration  treaty  unanimously,  I  believe.     The 

President,  in  the  exercise  of  the  power  which  no  one  can  dispute, 

pocketed  it.     The  President  may  negotiate  and  sign  a  proposed 

treaty,  and  not  send  it  to  the  Senate.     In  such  case  what  would  be 

thought  of  a  resolution  asking  him  to  inform  the  Senate  whether 

he  had  negotiated  such  a  proposed  treaty,  and  why  he  had  not  sent 

it  to  the  Senate?     Having  sent  a  treaty  to  the  Senate,  he  may 

withdraw  it  the  next  day. 

The  Senate  Mr.  President,  the  three  great  coordinate  branches  of  this  Gov- 

invade"the  ^   crnment  are  made  by  the  Constitution  independent  of  each  other 

President's      except  where  the  Constitution  provides  otherwise.     We  have  no 

sp  ere  o         right  to  assume  the  exercise  of  any  executive  power  save  under  the 

power.  o        _       _  ... 

Constitution.  We  can  not  assume  judicial  functions.  The  Presi- 
dent may  not  assume  judicial  functions.  The  President -may  not 
assume  legislative  functions.  We  as  the  Senate,  a  part  of  the  treaty- 
making  power,  have  no  more  right  under  the  Constitution  to  invade 
the  prerogative  of  the  President  to  deal  with  our  foreign  relations, 
to  conduct  them,  to  negotiate  treaties,  and  that  is  not  all  —  the 
conduct  of  our  foreign  relations  is  not  limited  to  the  negotiation 
of  treaties  —  we  have  no  more  right  under  the  Constitution  to 
invade  that  prerogative  than  he  has  to  invade  the  prerogative  of 
legislation. 

123.    The  Recognition  of  a  New  Government 

The  right  of  recognizing  a  new  government  or  an  independent 
state  is  an  important  one,  for  its  exercise  may  involve  an  adminis- 
tration in  serious  difiiculties  with  other  countries  or  governments 


Foreign  Affairs  303 

concerned.  The  way  in  which  recognition  may  be  made  and  in 
which  the  Senate  may  bring  pressure  on  the  President  is  illustrated 
in  this  report  made  to  the  Senate  by  the  committee  on  foreign  rela- 
tions in  1836. 

The  recognition  of  Texas  as  an  independent  power  may  be  made  How  an 
by  the  United  States  in  various  ways:    First,  by  treaty;   second,   ^weTmay 
by  the  passage  of  a  law  regulating  commercial  intercourse  between  be  recog- 
the  two  powers ;  third,  by  sending  a  diplomatic  agent  to  Texas  with 
the  usual  credentials;    or,  lastly,  by  the  Executive  receiving  and 
accrediting  a  diplomatic  representative  from  Texas  which  would 
be  a  recognition  as  far  as  the  Executive  only  is  competent  to  make 
it.     In  the  first  and  third  modes  the  concurrence  of  the  Senate  in 
its  executive  character  would  be  necessary,  and  in  the  second  in 
its  legislative  character.     The  Senate  alone,  without  the  coopera- 
tion of  some  other  branch  of  the  Government,  is  not  competent  to 
recognize  the  existence  of  any  power. 

The  President  of  the  United  States,  by  the  Constitution,  has  the  The 
charge  of  their  foreign  intercourse.     Regularly  he  ought  to  take  rg'^^ulariv 
the  initiative  in  the  acknowledgement  of  the  independence  of  any   should  take 
new  power,  but  in  this  case  he  has  not  yet  done  it,  for  reasons  which   *  ^  initiative. 
he,  without  doubt,  deems  sufficient.     If  in  any  instance  the  Presi- 
dent should  be  tardy,  he  may  be  quickened  in  the  exercise  of  his 
power  by  the  expression  of  the  opinion,  or  by  other  acts,  of  one  or 
both  branches  of  Congress,  as  was  done  in  relation  to  the  republics 
formed  out  of  Spanish  America.     But  the  committee  do  not  think 
that  on  this  occasion  any  tardiness  is  justly  imputable  to  the  Execu- 
tive.    About  three  months  only  have  elapsed  since  the  establish- 
ment of  an  independent  Government  in  Texas,  and  it  is  not  un- 
reasonable to  wait  a  short  time  to  see  what  its  operation  will  be, 
and    especially  whether  it  will  afford   those  guarantees   which 
foreign  powers  have  a  right  to  expect  before  they  institute  rela- 
tions with  it. 

Taking  this  view  of  the  whole  matter,  the  committee  conclude 
by  recommending  to  the  Senate  the  adoption  of  the  following 
resolution : 


304 


American   Government  and   Politics 


How  the 
Third 
French 
Republic 
was  recog- 
nized. 


What  are 
the  condi- 
tions of 
recognition. 


Resolved,  That  the  independence  of  Texas  ought  to  be  acknowl- 
edged by  the  United  States  whenever  satisfactory  information 
shall  be  received  that  it  has  in  successful  operation  a  civil  govern- 
ment, capable  of  performing  the  duties  and  fulfilling  the  obliga- 
tions of  an  independent  power. 

The  general  conditions  under  which  the  recognition  of  new 
governments  should  be  made  are  thus  discussed  in  a  debate  in  the 
Senate  in  1903  over  the  recognition  of  the  republic  of  Panama :  — 

Mr.  Foraker.  In  1870  when  the  Republic  of  France  was  es- 
tablished, we  recognized  it  immediately.  We  did  not  wait  a  day, 
or  two  days,  nor  three  days,  nor  five  days,  or  any  other  length 
of  time.  It  was  established  one  day.  The  date  of  our  cable- 
gram instructing  Minister  Washburne  to  recognize  the  Repubhc 
of  France  was  dated  the  next  day.  That  apparent  delay  of  a  day 
was  only  because  of  the  difference  in  time.  It  was  sent  in  the 
evening.  It  was  already  the  next  day  when  it  got  here  and  was 
answered.  France  had  no  constitution,  but  it  was  not  a  humming 
bird  or  any  other  thing  of  a  diminutive  character,  but  a  great 
mighty  people,  forty  millions  or  more,  who  had  set  up  a  republic 
dedicated  to  freedom  and  to  human  liberty,  and  this  great  republic 
at  once  responded  with  recognition. 

Mr.  Aldrich.  We  did  not  even  ask  France,  as  I  remember, 
whether  the  government  which  had  been  overthrown  consented. 

Mr.  Foraker.  No.  Now  in  1873  they  established  a  re- 
public in  Spain.  There  was  no  delay.  Immediately  our  minister 
there,  General  Sickles,  was  advised  by  our  government  to  recognize 
and  he  did  recognize,  the  Republic  of  Spain.  Later  when  the 
Emperor  of  Brazil  was  deposed,  the  republic  that  followed  him 
was  instantly  recognized,  and  other  examples  might  be  cited. 
Mr.  President,  there  was  no  reason  in  the  case  of  France,  or  Spain, 
or  Brazil  for  precipitate  or  hasty  action;  we  had  no  special  duties 
there ;  but  in  the  case  of  the  Republic  of  Panama  it  was  different. 

What  are  the  conditions,  according  to  international  law,  that  are 
sufficient  to  justify  us  in  instantly  recognizing  a  new  government 


Foreign  Affairs  305 

as  we  did  in  the  case  of  France,  Spain,  and  Brazil?  The  only 
condition  necessary,  —  and  it  does  not  make  any  difference,  in 
the  language  of  the  Senator  from  Massachusetts  whether  it  be 
brought  about  in  five  minutes,  or  five  days,  or  five  months  —  is  that 
the  new  government  shall  be  the  sole  authority  throughout  the 
region  over  which  it  undertakes  to  govern,  and  that  there  is  no 
contention  and  no  disputed  authority.  It  is  not  necessary  to  go 
that  far.  But  when  those  conditions  exist  to  that  extent,  then  ac- 
cording to  all  canons  of  international  law,  a  recognition  is  in  order 
at  the  option  of  the  recognizing  government.  In  the  case  of 
France,  I  say,  there  was  no  special  necessity  for  haste  but  these  con- 
ditions existed  as  we  understood  and  we  recognized  it.  It  was  the 
same  as  to  Spain,  and  the  same  as  to  Brazil  in  a  general  way. 

124.    An  Arbitration   Treaty 

The  United  States  has  taken  an  important  part  in  the  two  peace 
conferences  at  the  Hague  and  in  pursuance  of  the  recommendations 
of  the  first  conference  has  made  arbitration  treaties  with  most  of 
the  important  powers  of  the  world.  The  general  tenor  of  all  these 
treaties  is  illustrated  by  this  treaty  signed  with  Great  Britain  in 
1908. 

The  President  of  the  United  States  of  America  and  His  Majesty  The 
the  King  of  the  United  Kingdom  of  Great  Britain  and  Ireland   ^f  p^^^frs 
and  of  the  British  Dominions  beyond  the  Seas,  Emperor  of  India,   by  the  pleni- 
desiring  in  pursuance  of  the  principles  set  forth  in  articles  15-19    ^°  ^"^  lanes. 
of  the  convention  for  the  pacific  settlement  of  international  dis- 
putes, signed  at  the  Hague  July  22,  1899,  to  enter  into  negotiations 
for  the  conclusion  of  an  arbitration  convention,  have  named  as 
their  Plenipotentiaries  to  wit:   The  President  of  the  United  States 
of  America,  Elihu  Root,  Secretary  of  State  of  the  United  States, 
and  His  Majesty  the  King  of  Great  Britain  and  Ireland  and  of 
the  British  Dominions  beyond  the  Seas,  Emperor  of  India,  The 
Right  Honorable  James  Bryce,  O.  M.,  who,  after  having  com- 
municated to  one  another  their  full  powers,  found  in  good  and  due 
form,  have  agreed  upon  the  following  articles: 

X 


3o6 


American   Government  and   Politics 


Article  I 

Differences  which  may  arise  of  a  legal  nature  or  relating  to  the 
interpretation  of  treaties  existing  between  the  two  Contracting 
parties  and  which  it  may  not  have  been  possible  to  settle  by  di- 
plomacy, shall  be  referred  to  the  Permanent  Court  of  Arbitration 
established  at  the  Hague  by  the  convention  of  the  2gth  of  July, 
1899,  provided,  nevertheless,  that  they  do  not  affect  the  vital  in- 
terests, the  independence,  or  the  honor  of  the  two  contracting 
States,  and  do  not  concern  the  interests  of  third  parties. 

Article   II 

In  each  individual  case  the  High  Contracting  Parties,  before 
appealing  to  the  Permanent  Court  of  Arbitration,  shall  conclude 
a  special  agreement  defining  clearly  the  matter  in  dispute,  the  scope 
of  the  powers  of  the  arbitrators,  and  the  periods  to  be  fixed  for 
the  formation  of  the  arbitral  tribunal,  and  the  several  stages  of  the 
procedure.  It  is  understood  that  such  special  agreements  on 
the  part  of  the  United  States  will  be  made  by  the  President  of 
the  United  States,  by  and  with  the  advice  and  consent  of  the  Sen- 
ate thereof;  His  Majesty's  Government  reserving  the  right  before 
concluding  a  special  agreement  in  any  matter  affecting  the  in- 
terests of  a  self-governing  dominion  of  the  British  Empire  to  ob- 
tain the  concurrence  therein  of  the  government  of  that  dominion. 

Such  agreements  shall  be  binding  only  when  confirmed  by  tlie 
two  governments  by  an  exchange  of  notes. 


Article   III 

The  present  convention  shall  be  ratified  by  the  President  of  the 
United  States  of  America  by  and  with  the  advice  and  consent  of 
the  Senate  thereof,  and  by  His  Britannic  Majesty.  The  ratifica- 
tions shall  be  exchanged  at  Washington,  as  soon  as  possible,  and 
the  convention  shall  take  effect  on  the  date  of  the  exchange  of  its 
ratifications. 


Foreign  Affairs  307 

Article    IV 

The  present  convention  is  concluded  for  a  period  of  five  years 
dating  from  the  day  of  the  exchange  of  its  ratifications. 

Done  in  duplicate  at  the  city  of  Washington,  this  fourth  day  of 
April,  in  the  year  1908. 

Ellbxt  Root  (Seal) 
James  Bryce  (Seal) 


CHAPTER  XVII 


NATIONAL   DEFENSE 


125.    The  National  Militia 

Under  the  Constitution,  Congress  is  authorized  to  raise  and 
support  armies,  provide  and  maintain  a  navy,  to  provide  for 
organizing,  arming,  and  disciplining  the  militia  and  calling  the 
militia  into  federal  service,  and  to  make  rules  for  the  government 
of  the  land  and  naval  forces  and  of  the  militia  when  in  the  service 
of  the  United  States.  The  sole  express  restriction  on  this  military 
power  of  Congress  is  the  provision  limiting  appropriations  to  a 
term  of  not  more  than  two  years.  The  direction  of  the  forces, 
however,  is  committed  to  the  President  as  commander-in-chief. 
The  ultimate  resource  for  the  defense  of  the  nation  is  the  entire 
population  of  able-bodied  males  capable  of  bearing  arms.  This 
citizen  army  is  organized  by  an  important  statute  passed  in  1903 
and  amended  in  1908,  from  which  two  sections  are  given  here. 

Sec.  I.  That  the  militia  shall  consist  of  every  able-bodied  male 
citizen  of  the  respective  States  and  Territories,  and  the  District  of 
Columbia,  and  every  able-bodied  male  of  foreign  birth  who  has  de- 
clared his  intention  to  become  a  citizen,  who  is  more  than  eighteen 
and  less  than  forty-five  years  of  age,  and  shall  be  divided  into  two 
classes  —  the  organized  militia,  to  be  known  as  the  National 
Guard  of  the  State,  Territory,  or  District  of  Columbia,  or  by 
such  other  designations  as  may  be  given  them  by  the  laws  of  the 
respective  States  or  Territories,  and  the  remainder  to  be  known 
as  the  Reserve  Militia.  .  .  . 

Sec.  4.  That  whenever  the  United  States  is  invaded,  or  in 
danger  of  invasion  from  any  foreign  nation,  or  of  rebellion  against 
the  authority  of  the  Government  of  the  United  States,  or  the  Presi- 
dent is  unable,  with  the  regular  forces  at  his  command,  to  execute 
the  laws  of  the  Union,  it  shall  be  lawful  for  the  President  to  call 
forth  such  number  of  the  militia  of  the  State  or  of  the  States  or 
Territories  or  of  the  district  of  Columbia  as  he  may  deem  neces- 


*  See  above,  p. 
308 


[77. 


National   Defense  309 

sary  to  repel  such  invasion,  suppress  such  rebellion,  or  to  enable 
him  to  execute  such  laws,  and  to  issue  his  orders  for  that  purpose, 
through  the  Governor  of  the  respective  State  or  Territory,  or  through 
the  commanding-general  of  the  militia  of  the  District  of  Columbia, 
from  which  State,  Territory,  or  District  such  troops  may  be  called, 
to  such  officers  of  the  militia  as  he  may  think  proper. 

126.    The  Organization  of  the  Standing  Army 

These  sections  from  an  act  passed  in  1901  to  increase  the  effi- 
ciency of  the  permanent  military  estabhshment  of  the  United 
States  will  serve  to  illustrate  very  well  the  elaborate  fashion  in 
which  Congress  must  provide  for  the  minutest  details  of  the  mih- 
tary  organization :  — 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  ^^^  ^.rmy 
United  States  of  America  in  Congress  assembled,  That  from  and  united 
after  the  approval  of  this  act  the  Army  of  the  United  States,  in-  States. 
eluding  the  existing  organizations,  shall  consist  of  fifteen  regi- 
ments of  cavalry,  a  corps  of  artillery,  thirty  regiments  of  infantry, 
one  Lieutenant-General,  six  major-generals,  fifteen  brigadier- 
generals,  an  Adjutant-General's  Department,  an  Inspector  Gen- 
eral's Department,  A  Judge-Advocate-General's  Department,  a 
Quartermaster's  Department,  a  Subsistence  Department,  a  Med- 
ical Department,  a  Pay  Department,  a  Corps  of  Engineers,  an 
Ordnance  Department,  a  Signal  Corps,  the  officers  of  the  Record 
and  Pension  Office,  the  chaplains,  the  officers  and  enlisted  men  of 
the  Army  on  the  retired  list,  the  professors,  corps  of  cadets,  the 
army  detachments  and  band  at  the  United  States  Military  Acad- 
emy, Indian  scouts  as  now  authorized  by  law,  and  such  other 
officers  and  enlisted  men  as  may  hereinafter  be  provided  for.  .  .  . 

Sec.  2.  That  each  regiment  of  cavalry  shall  consist  of  one  A  regiment 
colonel,  one  lieutenant-colonel,  three  majors,  fifteen  captains, 
fifteen  first-lieutenants;  fifteen  second-lieutenants,  two  veteri- 
narians, one  sergeant-major,  one  quartermaster-sergeant,  one 
commissary  sergeant,  three  squadron  sergeants-major,  two  color 
sergeants  with  rank,  pay,  and  allowances  of  squadron  sergeant- 


3IO  American  Government  and  Politics 

major,  one  band,  and  twelve  troops  organized  into  three  squad- 
rons of  four  troops  each.  .  .  .  Each  cavalry  band  shall  be  organ- 
ized as  now  provided  by  law.  Each  troop  of  cavalry  shall  consist 
of  one  captain,  one  first  lieutenant,  one  second  lieutenant,  one  first 
sergeant,  one  quartermaster  sergeant,  six  sergeants,  six  corporals, 
two  cooks,  two  farriers  and  blacksmiths,  one  saddler,  one  wagoner, 
two  trumpeters,  and  forty-three  privates,  the  commissioned  officers 
to  be  assigned  from  among  those  hereinbefore  authorized:  Pro- 
vided that  the  President  in  his  discretion  may  increase  the  number 
of  corporals  in  any  troop  of  cavalry  to  eight  and  the  number  of 
privates  to  seventy-six,  but  the  total  number  of  enlisted  men  author- 
ized for  the  whole  Army  shall  not  at  any  time  be  exceeded. 

[Here  follow  detailed  provisions  organizing  the  other  branches 
of  the  Army  of  the  United  States.] 

127.    The  Declaration  of  War 

The  power  to  declare  war  is  vested  by  the  Constitution  in  Con- 
gress, and  the  following  act  illustrates  the  manner  in  which  this 
power  is  exercised :  — 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  First.  That  war 
be,  and  the  same  is  hereby,  declared  to  exist,  and  that  war  has 
existed  since  the  21st  day  of  April,  a.d.  1898,  including  said  day, 
between  the  United  States  of  America  and  the  Kingdom  of  Spain. 

Second.  That  the  President  of  the  United  States  be,  and  he 
hereby  is,  directed  and  empowered  to  use  the  entire  land  and  naval 
forces  of  the  United  States  and  to  call  into  the  actual  service  of  the 
United  States  the  militia  of  the  several  States  to  such  extent  as  may 
be  necessary  to  carry  this  act  into  effect. 

Approved  April  25,  1898. 

128.    The  Call  for  Volunteers 

Before  the  formal  declaration  of  war  on  Spain,  President  McKin- 
ley,  acting  under  a  joint  resolution  and  an  act  of  Congress,  issued 
this  proclamation  calling  for  volunteers:  — 


National  Defense  311 

Whereas  a  I'oint  resolution  of  Coneress  was  approved  on  the   Congress 

•'  1  r         1  instructs 

20th  day  of  April,  1898,  entitled  "Joint  resolution  for  the  recog-   thePresident 

nition  of  the  independence  of  the  people  of  Cuba,  demanding  that   to  act. 

the  Government  of  Spain  relinquish  its  authority  and  government 

in  the  island  of  Cuba  and  withdraw  its  land  and  naval  forces 

from  Cuba  and  Cuban  waters,  and  directing  the  President  of  the 

United  States  to  use  the  land  and  naval  forces  of  the  United  States 

to  carry  these  resolutions  into  effect ;  "  and 

Whereas  by  an  act  of  Congress  entitled  "An  act  to  provide  for 
temporarily  increasing  the  military  establishment  of  the  United 
States  in  time  of  war,  and  for  other  purposes,"  approved  April 
22,  1898,  the  President  is  authorized,  in  order  to  raise  a  volunteer 
army,  to  issue  his  proclamation  caUing  for  volunteers  to  serve  in 
the  Army  of  the  United  States : 

Now,  therefore,  I,  William  McKinley,  President  of  the  United  The  call 
States,  by  virtue  of  the  power  vested  in  me  by  the  Constitution  and  volunteers, 
the  laws,  and  deeming  sufficient  occasion  to  exist,  have  thought  fit 
to  call  forth,  and  do  hereby  call  forth,  volunteers  to  the  aggregate 
number  of  125,000  in  order  to  carry  into  effect  the  purpose  of  the 
said  resolution,  the  same  to  be  apportioned,  as  far  as  practicable, 
among  the  several  States  and  Territories  and  the  District  of  Co- 
lumbia according  to  population  and  to  serve  for  two  years  unless 
sooner  discharged.  The  details  for  this  object  will  be  immediately 
communicated  to  the  proper  authorities  through  the  War  Depart- 
ment. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  caused 

the  seal  of  the  United  States  to  be  affixed. 
Done  at  the  city  of  Washington,  this  23d  day  of  April,  a.d.  1898, 
and  of  the  Independence  of  the  United  States  the  one  hun- 
dred and  twenty-second. 
(Seal.)  William  McKinley. 

By  the  President: 
John  Sherman, 
Secretary  of  State. 


312 


American  Government  and  Politics 


129.    The  Establishment  of  a  Blockade 

One  of  the  most  effective  instruments  of  war  is  the  closure  of 
the  enemy's  ports  by  blockade,  and  the  power  to  establish  a  block- 
ade is  incidental  to  the  general  war  powers.  It  is  not  specifically 
mentioned  in  the  Constitution  and  presumably  may  be  exercised  by 
Congress  or  the  President  or  by  both  in  conjunction.  On  April  22, 
1898,  President  McKinley  issued  the  following  proclamation:  — 

Whereas  by  a  joint  resolution  passed  by  the  Congress  and  ap- 
proved April  20,  1898,  and  communicated  to  the  Government  of 
Spain,  it  was  demanded  that  said  Government  at  once  relinquish 
its  authority  and  government  in  the  island  of  Cuba  and  withdraw 
its  land  and  naval  forces  from  Cuba  and  Cuban  waters,  and  the 
President  of  the  United  States  was  directed  and  empowered  to  use 
the  entire  land  and  naval  forces  of  the  United  States  and  to  call 
into  the  actual  service  of  the  United  States  the  militia  of  the  several 
States  to  such  extent  as  might  be  necessary  to  carry  said  resolution 
into  effect ;   and 

Whereas  in  carrying  into  effect  said  resolution  the  President  of 
the  United  States  deems  it  necessary  to  set  on  foot  and  maintain 
a  blockade  of  the  north  coast  of  Cuba,  including  all  ports  on  said 
coast  between  Cardenas  and  Bahia  Honda,  and  the  port  of  Cien- 
fuegos,  on  the  south  coast  of  Cuba: 

Now,  therefore,  I,  William  McKinley,  President  of  the  United 
States,  in  order  to  enforce  the  said  resolution,  do  hereby  declare 
and  proclaim  that  the  United  States  of  America  have  instituted  and 
will  maintain  a  blockade  of  the  north  coast  of  Cuba,  including 
ports  on  said  coast  between  Cardenas  and  Bahia  Honda,  and  the 
port  of  Cienfuegos,  on  the  south  coast  of  Cuba,  aforesaid,  in  pur- 
suance of  the  laws  of  the  United  States  and  the  law  of  nations  ap- 
plicable to  such  cases.  An  efficient  force  will  be  posted  so  as  to 
prevent  the  entrance  and  exit  of  vessels  from  the  ports  aforesaid. 
Any  neutral  vessel  approaching  any  of  the  said  ports  or  attempting 
to  leave  the  same  without  notice  or  knowledge  of  the  establishment 
of  such  blockade  will  be  duly  warned  by  the  commander  of  the 
blockading  forces,  who  will  indorse  on  her  register  the  fact  and  the 


National   Defense  313 

date  of  such  warning,  where  such  indorsement  was  made ;  and  if 
the  same  vessel  shall  again  attempt  to  enter  any  blockaded  port 
she  will  be  captured  and  sent  to  the  nearest  convenient  port  for 
such  proceedings  against  her  and  her  cargo  as  prize  as  may  be 
deemed  advisable. 

Neutral  vessels  lying  in  any  of  said  ports  at  the  time  of  the 
establishment  of  such  blockade  will  be  allowed  thirty  days  to  issue 
therefrom. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  caused  the 

seal  of  the  United  States  to  be  affixed. 
Done  at  the  city  of  Washington,  this  2 2d  day  of  April,  a.d., 
1898,  and  of  the  Independence  of  the  United  States  the  one 
hundred  and  twenty-second. 
(Seal.)  William  McKinley. 

By  the  President : 
John  Sherman, 

Secretary  of  State. 

130.    The  Direction  of  the  War^ 

The  following  extracts  from  an  article  in  the  World's  Work 
describe  the  wonderful  fashion  in  which  war  may  be  directed  in  all 
parts  of  the  world  from  a  single  room  at  the  White  House :  — 

The  Cuban  War  developed  in  the  White  House  the  novel  in-   The 
stitution  known  as  the  Telegraph  and  Cipher  Bureau.     President  of  the 
McKinley  conceived  the  idea  of  this  telegraph  and  telephone  office  War  Room, 
for  his  personal  use  at  the  outbreak  of  the  war.     It  is  called  the 
"War  Room"  because  it  formed  the  common  channel  through 
which  was  received  and  dispatched  all  the  most  important  informa- 
tion about  the  opposing  armies.     The  Bureau  is  an  apartment  the 
size  of  an  ordinary  drawing-room,  containing  the  most  improved 
modern  apparatus  for  communicating  quickly  by  telephone,  tele- 
graph or  ocean  cable  with  every  accessible  portion  of  the  globe. 
The  President,  although  Commander-in-Chief  of  the  Army  and  of 
the  Navy,  was  formerly  unable  to  know  exactly  the  progress  of 
events  at  the  seat  of  war.     Battles  were  fought,  campaigns  planned 


314  American  Government  and   Politics 

and  carried  into  execution,  and  even  surrenders  were  arranged 
without  direct  communication  with  the  Chief  Executive  at  every 
move;  but  President  McKinley  was  enabled  to  direct  from  his 
office  in  the  White  House  the  operations  of  the  army  and  navy  in 
Cuba  and  Porto  Rico. 
How  the  The  "War  Room"  brought  valuable  and  prompt  information 

jjgpt  of  the  great  strategic  game  played  upon  the  waters  of  the  Atlantic, 

informed.  While  the  press  and  the  public  were  kept  for  weeks  in  suspense 
about  the  movements  of  Admiral  Cervera's  fleet  and  the  intentions 
of  its  commander,  the  President,  through  secret  agents  in  Europe, 
was  possessed  of  accurate  information  disclosing  the  plans  of  the 
Spanish  Government  before  its  war  vessels  left  the  home  port. 
The  movements  of  the  hostile  squadron  were  marked  day  by  day 
upon  a  great  map  on  the  wall,  and  in  the  secrecy  of  the  "War 
Room"  the  President  knew  that  the  fleet  was  in  the  harbor  of 
Santiago  before  the  public  was  informed. 
Communi-  As  the  invading  army  advanced  into  Cuba,  telegraph  lines  were 

the^°ront^'  constructed  and  the  President  was  kept  in  touch  with  his  command- 
ers in  the  field.  So  perfect  were  the  arrangements  that  he  was 
able  to  communicate  from  Washington  in  less  than  twenty  minutes 
with  the  officers  on  the  firing  line  at  Santiago.  There  were  days 
when  the  President,  the  Secretary  of  War  and  the  Secretary  of  the 
Navy  sat  for  hours  at  the  elbows  of  the  telegraphers,  directing  in 
person  the  mihtary  operations  thousands  of  miles  distant.  On  the 
day  which  brought  the  occupation  of  Santiago  the  President  stood 
before  great  maps  on  which  were  marked  in  contrasting  colors  the 
exact  position  of  every  detachment  of  the  American  and  Spanish 
forces.  When  a  flag  of  truce  appeared  at  any  of  the  enemy's 
outposts  the  anxious  commander-in-chief  was  apprised  of  the 
fact  within  a  few  minutes.  Had  the  slender  metallic  strand  be- 
tween the  President  and  the  powder-begrimed  fighters  in  the 
trenches  been  a  telephone  instead  of  3.  telegraph  line,  he  might 
almost  have  heard  the  thunder  of  the  guns  and  listened  to  the 
cheers  of  the  American  soldiers  as  the  red  and  yellow  flags  dropped 
from  the  ramparts. 


National   Defense  315 

This  account  of  the  steps  taken  by  Lincoln  and  Stanton  in 
preparation  for  the  fateful  battle  of  Gettysburg  illustrates  the 
manner  in  which  the  President  and  Secretary  of  War  may  cooperate 
in  directing  the  military  forces :  — 

It  was  night  in  Washington.  The  President  wore  a  gloomy  face  Lincoln  and 
as  he  entered  the  War  Department  by  the  urgent  request  of  Secre-  counsel 
tary  Stanton.  Neither  spoke  for  a  while.  Mr.  Lincoln  at  last  on  the 
said:  "Stanton,  you  want  to  speak  to  me;  you  have  something  to  taule. 
communicate;  let  us  calmly  counsel  with  each  other:  I  am  ready 
to  listen."  The  Secretary  repHed:  "Yes,  I  do  want  to  say  some- 
thing to  you.  I  want  to  tell  you  the  trouble  that  oppresses  me  at 
this  time;  I'll  not  mince  words,  for  I  feel  you  want  to  know  the 
worst."  "I  do,"  said  Mr.  Lincoln;  "speak  out  then,  I'll  be  lis- 
tener." Mr.  Stanton  in  brief  language  told  him  that  he  dreaded 
the  issue  of  the  coming  1  tattle,  with  Lee's  conscious  ability  and  the 
animating  spirit  of  his  army,  on  the  one  side,  and  Hooker,  the 
beaten  general,  commanding  men  who  still  remembered  their 
defeat  in  Virginia  on  the  other  side.  "In  short,"  said  Mr.  Stanton, 
"I  have  not  confidence  in  General  Hooker,  though  his  personal 
courage  I  do  not  question."  "I  don't  disagree  with  you,"  said 
the  President,  but  you  recollect  the  old  saying,  'While  crossing  a 
stream  it  is  too  late  to  swap  horses.'  Stanton,  have  you  any  other 
general  to  suggest?"  He  replied:  "I  have  thought  of  General 
Sedgwick,  but  you  know  he  will  not  accept.  I  have  thought  of 
others  and  arrived  at  the  same  conclusion.  The  best  of  them  are 
not  without  detractors.  There  is  one  that  I  would  suggest,  Gen- 
eral Meade,  with  whose  record  and  ability  I  could  lind  no  fault; 
and  as  a  Pennsylvanian  he  has  patriotism  enough  to  draw  out  all 
the  latent  energies  of  his  nature.  .  .  ."  "Stanton,  there  is  no 
time  to  be  lost.  You  must  have  conceived  a  plan.  If  you  can 
satisfy  my  judgment  that  this  expedient  will  prove  a  master  stroke, 
and  lead  to  success,  I  will  co-operate  with  you,  and  give  it  my  ap- 
proval." Secretary  Stanton  then  detailed  his  plans.  The  orders 
and  papers,  all  written  out,  were  taken  up  seriatim  and  discussed, 
and  the  i)apers  executed. 


3i6 


American   Government  and   Politics 


The  plans 
carried  into 
execution. 


Instructions 
to  General 
Shafter  to 
proceed  to 
Cuba  (189S). 


A  locomotive  engine  was  in  readiness,  fired  up;  orders  were 
placed  in  the  hands  of  a  tried  officer  of  the  regular  army,  who  had 
precise  instructions  how  to  proceed.  The  first  was  to  go  forward 
to  the  headquarters  of  General  Meade  who  was  ordered  by  a  paper 
delivered  to  him  to  take  command  of  the  army;  the  second  was  to 
deliver  to  General  Hooker  orders  which  informed  him  that  he  was 
superseded  by  General  Meade ;  and  all  conditions  were  fully  ar- 
ranged to  give  simultaneous  intelHgence  to  the  corps  and  division 
commanders  in  the  field,  of  the  President's  order  for  the  change, 
so  that  immediate  intelHgence  to  all  subordinate  officers  might  be 
given  to  the  soldiers  under  their  command.  These  orders  were 
announced  and  acquiesced  in,  and  a  new  spirit  wakened  among 
the  rank  and  file  of  the  army.  All  the  world  knows  the  story  of 
Gettysburg. 

The  lengths  to  which  the  President  as  Commander-in-Chief  and 
his  immediate  subordinates  at  Washington  may  go  in  prescribing 
the  exact  movements  of  the  army  and  navy  in  the  war  on  land  and 
sea  must,  of  course,  always  be  determined  by  circumstances. 
This  order  issued  in  connection  with  the  Spanish-American  war 
serves  to  illustrate  the  process  of  direction  only  in  a  very  general 
way. 

War  Department,  Washington,  May  30,  1898. 
(Sent  in  cii)hcr.  May  31,  i8g8,  2.30  A.M.) 

Maj.  Gen.  WiUiam  R.  Shafter,  Tampa,  Fla. : 

With  the  a])proval  of  the  Secretary  of  War,  you  are  directed  to 
take  your  command  on  transports,  proceed  under  convoy  of  the 
Navy  to  the  vicinity  of  Santiago  dt  Cuba,  land  your  force  at  such 
place  east  or  west  of  that  point  as  your  judgment  may  dictate, 
under  the  protection  of  the  Navy,  and  move  it  on  to  the  high  ground 
and  bluffs  overlooking  the  harbor  or  into  the  interior,  as  shall  best 
enable  you  to  capture  or  destroy  the  garrison  there ;  and  cover  the 
Navy  as  it  sends  its  men  in  small  boats  to  remove  torpedoes,  or  with 
the  aid  of  the  Navy  capture  or  destroy  the  Spanish  fleet  now  re- 
ported to  be  in  Santiago  Harbor.  You  will  use  the  utmost  energy 
to  accomplish  this  enterprize,  and  the  Government  relies  upon 


National  Defense  317 

your  good  judgment  as  to  the  judicious  use  of  your  command,  but 
desires  to  impress  upon  you  the  importance  of  accomplishing  this 
object  with  the  least  possible  delay.  You  can  call  to  your  assist- 
ance any  of  the  insurgent  forces  in  that  vicinity,  and  make  use  of 
such  of  them  as  you  think  advisable  to  assist  you,  especially  as 
scouts,  guides,  etc.  You  are  cautioned  against  putting  too  much 
confidence  in  any  persons  outside  of  your  troops.  You  will  take 
every  precaution  against  ambuscades  or  surprises  or  positions  that 
may  have  been  mined  or  are  commanded  by  the  Spanish  forces. 
You  will  cooperate  most  earnestly  with  the  naval  forces  in  every 
way,  agreeing  beforehand  upon  a  code  of  signals.  Communicate 
your  instructions  to  Admiral  Sampson  and  Commodore  Schley. 
On  completion  of  this  enterprize,  unless  you  receive  other  orders 
or  deem  it  advisable  to  remain  in  the  harbor  of  Santiago  de  Cuba, 
reembark  your  troops  and  proceed  to  the  harbor  of  Port  de  Banes, 
reporting  by  the  most  favorable  means  for  further  orders  and 
future  important  service.  This  with  the  understanding  that  your 
command  has  not  sustained  serious  loss  and  that  the  above  harbor 
is  safe  for  your  transports  and  convoys.  When  will  you  sail? 
By  command  of  Major-General  Miles: 

H.  C.  CoRBiN,  Adjutant-General. 

131.    Use  of  Troops  in  Domestic  Disturbances 

In  1894,  on  the  occasion  of  local  disorders  in  Chicago  in  connec- 
tion with  a  strike,  President  Cleveland  employed  federal  troops 
and  issued  this  proclamation  to  the  citizens  of  Illinois :  — 

Whereas,  by  reason  of  unlawful  obstructions,  combinations  and   Reasons  for 
assemblages  of  persons,  it  has  become  impracticable,  in  the  judg- 
ment of  the  President,  to  enforce,  by  the  ordinary  course  of  judicial 
proceedings,  the  laws  of  the  United  States  within  the  State  of  Illi- 
nois, and  especially  in  the  city  of  Chicago  within  said  State;   and 

Whereas,  for  the  purpose  of  enforcing  the  faithful  execution  of 
the  laws  of  the  United  States  and  protecting  its  property  and  re- 
moving obstructions  to  the  United  States  mails  in  the  State  and 


action. 


3"8 


American  Government  and  Politics 


Rioters 
ordered  to 
disperse. 


city  aforesaid,  the  President  has  employed  a  part  of  the  military 
forces  of  the  United  States :  — 

Now,  therefore,  I,  Grover  Cleveland,  President  of  the  United 
States,  do  hereby  admonish  all  good  citizens,  and  all  persons  who 
may  be  or  may  come  within  the  City  and  State  aforesaid,  against 
aiding,  countenancing,  encouraging,  or  taking  any  part  in  such  un- 
lawful obstructions,  combinations,  and  assemblages;  and  I  hereby 
warn  all  persons  engaged  in  or  in  any  way  connected  with  such  un- 
lawful obstructions,  combinations  and  assemblages  to  disperse 
and  retire  peaceably  to  their  respective  abodes  on  or  before  twelve 
o'clock  noon  of  the  gth  day  of  July  instant.  Those  who  disregard 
this  warning  and  persist  in  taking  part  with  a  riotous  mob  in 
forcibly  resisting  and  obstructing  the  execution  of  the  laws  of  the 
United  States,  or  interfering  with  the  functions  of  the  Govern- 
ment, or  destroying  or  attempting  to  destroy  the  property  be- 
longing to  the  United  States  or  under  its  protection,  cannot  be 
regarded  otherwise  than  as  pubHc  enemies. 

Troops  employed  against  such  a  riotous  mob  will  act  with  all  the 
moderation  and  forbearance  consistent  with  the  accomplishment 
of  the  desired  end;  but  the  stern  necessities  that  confront  them 
will  not  with  certainty  permit  discrimination  between  guilty  par- 
ticipants and  those  who  are  mingling  with  them  from  curiosity  and 
without  criminal  intent.  The  only  safe  course,  therefore,  for  those 
not  actually  participating,  is  to  abide  at  their  homes,  or  at  least  not 
to  be  found  in  the  neighborhood  of  riotous  assemblages.  While 
there  will  be  no  vacillation  in  the  decisive  treatment  of  the  guilty, 
this  warning  is  especially  intended  to  protect  and  save  the  inno- 
cent. 


132.    Use  of  Troops  in  Domestic  Disasters 

The  Report  of  the  War  Department  in  1906  thus  described  the 
way  in  which  federal  soldiers  were  employed  on  the  occasion  of  the 
great  earthquake  in  San  Francisco:  — 

On  April  18,  the  city  of  San  Francisco  was  visited  by  a  series 
of  earthquake  shocks  which  demolished  many  buildings.     This 


National  Defense  319 

was  followed  by  a  fire  which,  due  to  the  rupturing  of  the  principal   Concentra- 
water  mains  of  the  city,  was  soon  beyond  control.     The  disaster  forces  at 
was  so  far-reaching  and  overwhelming  that  it  was  entirely  beyond   San  Fran- 
the  capacity  of  the  local  authorities,  and  the  United  States  forces 
in  the  vicinity,  both  of  the  Army  and  of  the  Navy,  rendered  im- 
mediate assistance.     Authority  was  given  to  concentrate  at  San 
Francisco  all  forces  within  the  Pacific  Division,  and  later  this  force 
was  supplemented  by  troops  from  other  divisions,  resulting  in  a 
final  concentration  of  2  regiments  of  cavalry,   15  companies  of 
coast  artillery,  5  batteries  of  field  artillery,  5  regiments  of  infantry, 
and  detachments  of  the  engineer,  signal,  and  hospital  corps,  and 
132  additional  ofi&cers. 

The  following  summary,  taken  in  large  part  from  a  general 
order  published  early  in  July  by  the  commanding  general.  Pacific 
Division,  is  a  succinct  statement  of  the  general  situation. 

The  work  done  by  this  force  readily  falls  into  two  phases  —  Fighting 
the  struggle  to  save  the  city  of  San  Francisco  from  complete  de- 
struction by  fire,  and  the  succoring  of  more  than  300,000  suffer- 
ing and  destitute  people.  The  work  of  the  Army  and  Marine 
Corps  in  the  heart  of  the  city,  supplemented  by  the  labors  of  the 
Navy  along  the  water  front,  saved  the  residential  western  addition 
and  practically  all  the  wharves  fronting  the  bay.  The  efforts  of 
the  troops  from  daybreak  of  April  18  to  midnight  of  April  20 
taxed  to  the  utmost  the  physical  strength,  the  nervous  energy,  and 
the  good  temper  of  every  officer  and  man.  Yet  in  this  fearful 
disaster,  with  its  accompanying  confusion  and  excitement,  no  life 
was  taken  by  any  man  of  the  Army  or  Navy. 

The  labor  of  relief,  recognized  as  beyond  the  law  and  assumed   General 

relief 

by  the  division  commander  from  a  sense  of  obligatory  public  duty,  services, 
became  regular  by  the  official  call  for  troops.  This  duty  necessi- 
tated the  care  of  nearly  350,000  people,  destitute  in  one  way  or 
another,  in  a  city  without  local  transportation,  without  food,  with 
scant  water,  and  without  sanitary  facilities,  while  about  one-half 
its  population  had  lost  houses,  clothing,  furniture,  and  bedding. 
It  Hkewise  involved  repression  of  theft  and  violence  by  the  vicious, 


320  American  Government  and  Politics 

non-interference  with  the  liberty  and  acts  of  the  ordinary  citizen, 
discrimination  in  the  distribution  of  food,  enforcement  of  suitable 
sanitary  methods,  instruction  in  camp  hfe,  patient  consideration 
and  courteous  deportment  toward  the  homeless  and  destitute. 

The  adaptabihty  and  resourcefulness  shown  by  officers  and  men 
when  deahng  with  novel  and  unprecedented  conditions,  their  con- 
sideration and  thoughtfulness  in  alleviating  distress,  their  unvary- 
ing courtesy  to  all,  and  their  uncomplaining  devotion  to  the 
community  and  its  interests  are  most  commendable,  and  have 
exemplified  anew  the  admirable  attributes  of  the  officers  and  men 
of  our  Army,  which  insure  the  successful  application  of  its  moral, 
intellectual,  and  physical  powers  to  novel  and  difficult  duties. 


133.    The  American  Theory  of  National  Defense^ 

In  the  follovnng  speech  made  in  the  Senate  against  the  bill 
authorizing  the  increase  of  the  standing  army  to  the  number  of 
100,000,  Senator  Teller  thus  voiced  what  is  doubtless  the  general 
theory  of  the  American  people  as  to  the  desirability  of  relying 
upon  able-bodied  citizens  rather  than  a  paid  regular  soldiery  as 
the  best  resource  for  defending  the  nation. 

I  wish  to  say  that  my  opposition  to  this  bill  is  not  because  I 
think  a  hundred  thousand  men  can  destroy  the  liberties  of  this 
country,  nor  five  hundred  thousand,  but  because  it  establishes  a 
principle  contrary  to  a  republican  principle,  which  is  that  the 
fighting  force  of  a  republic  is  the  great  body  of  the  people,  and  not 
a  paid  soldiery,  called  "regulars."  Since  the  birth  of  the  world,  in 
all  history,  there  has  never  been  a  time  when  the  people  were  so 
pressed  down  and  burdened  by  great  armies  and  great  army  ex- 
penses as  they  are  to-day.  There  are  bigger  armies  now  than  when 
Napoleon  fought  the  world.  They  are  not  in  active  service,  but 
they  are  a  weight  upon  the  industries  and  upon  the  productive 
energies  of  the  people.  Russia,  a  country  not  rich,  has  850,000 
men  in  her  army,  and  3,500,000  that  she  can  bring  into  the  army. 
England,  with  200,000  in  her  regular  army,  has  now  in  the  neigh- 


National   Defense  321 

bourhood  of  400,000  men  in  the  field.  The  total  expenses  for  the 
armies  of  Europe  alone  in  time  of  peace  is  enough  to  pay  our  in- 
terest-bearing debt  every  year. 

Mr.  President,  I  object  to  this  bill.  I  object  to  it  as  calculated  Patriotism 
to  injure  and  to  destroy  the  patriotic  impulse  of  the  young  men  of  p^j^  army. 
the  country,  who  want  to  be  educated  to  believe  that  when  there  is 
danger  they  are  the  ones  to  confront  it  —  the  young  men  who 
should  be  taught  to  beheve  that  a  rnan  is  entitled  to  go  into  the 
Army  when  his  country  is  assailed.  He  does  not  go  into  the  Army 
for  $15  a  month,  but  he  goes  into  it  stimulated  by  patriotism  and  not 
by  the  hope  of  gain.  You  are  going  to  say  to  all  the  young  men, 
"You  are  not  needed;  it  is  folly  to  take  an  interest  in  mihtary 
afifairs,  for  we  are  going  to  fight  our  battles  in  the  future  with  paid 
hirelings,"  whom  we  pick  up  frequently  out  of  the  very  slums  of 
Europe;  men  who  are  fighting  machines,  but  are  not  thinking 
men. 

Mr.  President,  we  had  a  great  army  in  the  field,  a  million  men  at  The  armies 
one  time  on  our  side,  and  somewhat  less  on  the  other.  Why  were  %  -.'^vy 
those  two  armies  the  best  armies  in  the  world  that  ever  aggregated 
together?  Simply  because  they  were  the  brains  and  the  patriotism 
of  the  country.  There  were,  of  course,  some  bounty  jumpers  and 
some  foreigners,  but  the  great  battles  were  fought  by  the  stalwart 
sons  of  American  fathers  and  mothers,  and  that  is  where  you  have 
to  go,  unless  you  are  to  follow  the  European  system  and  the 
European  policy  with  a  great  standing  army. 

We  have  fought  our  battles,  not  with  the  Regular  Army,  but  with    Glorious 

htittlps 

the  volunteers.  The  great  battles  of  the  revolution  were  fought  by  ^,0,^  i^y 
humble  men  of  the  country  who  were  not  regulars.  The  war  of  volunteers. 
18 1 2,  as  will  be  discovered  if  anybody  will  take  the  pains  to  look, 
was  won  by  volunteers,  and  the  Mexican  war  was  fought  by  volun- 
teers and  not  by  the  regulars.  The  most  glorious  battles  in  the 
world,  where  the  greatest  heroism  has  been  exhibited,  where  the 
greatest  conflicts  between  men  have  taken  place,  have  been  fought, 
not  by  regulars,  but  by  volunteers.  It  was  the  boys  out  of  the  shop, 
with  the  exception  of  the  Old  Guard,  that  fought  for  Napoleon  on 

Y 


322  American  Government  and  Politics 

many  a  bloody  battlefield.  It  was  not  the  regulars.  He  called  upon 
the  French  people  and  they  responded.  Such  has  been  the  case  in 
England.  Such  is  the  case  with  every  liberty-loving  people.  You 
must  rely  upon  the  people,  not  upon  an  army.  An  army  is  a  vain 
delusion.  It  may  to-day  be  for  you;  it  may  be  against  you  to- 
morrow. 


CHAPTER  XVIII 

TAXATION   AND   FINANCE 

134.    The  Uniformity  Rule  Applied  to  Indirect  Taxes 

The  general  taxing  power  of  Congress  is  subject  to  the  two  great 
limitations  that  indirect  taxes  must  be  uniform  throughout  the 
United  States  and  direct  taxes  must  be  apportioned  among  the 
States  according  to  population.  The  question  of  direct  and  in- 
direct taxes  and  the  uniformity  rule  were  thus  discussed  by  the 
Supreme  Court  in  the  case  of  Knowlton  v.  Moore  reviewing  the 
inheritance  tax  law  enacted  during  the  Spanish-American  war. 

The  act  of  Congress  of  June  13,  1898,  c.  448,  which  is  usually  Statement 
spoken  of  as  the  War  Revenue  Act,  (30  Stat.  448),  imposes  various  question, 
stamp  duties  and  other  taxes.  Sections  29  and  30  of  the  statute, 
which  are  therein  prefaced  by  the  heading  "  Legacies  and  Distribu- 
tive Shares  of  Personal  Property,"  provide  for  the  assessment  and 
collection  of  the  particular  taxes  which  are  described  in  the  sections 
in  question  [i.e.,  inheritance  taxes].  To  determine  the  issues 
which  arise  on  this  record  it  is  necessary  to  decide  whether  the 
taxes  imposed  are  void  because  repugnant  to  the  Constitution  of 
the  United  States,  and  if  they  be  valid,  to  ascertain  and  define  their 
true  import.  .  .   . 

It  is  asserted  that  it  was  decided  in  the  income  tax  cases  that,  in 
order  to  determine  whether  a  tax  be  direct  within  the  meaning  of 
the  Constitution,  it  must  be  ascertained  whether  the  one  upon  whom 
by  law  the  burden  of  paying  it  is  first  cast,  can  thereafter  shift  it  to 
another  person.  If  he  cannot,  the  tax  would  then  be  direct  in  the 
constitutional  sense,  and,  hence,  however  obvious  in  other  respects 
it  might  be  a  duty,  impost,  or  excise,  it  cannot  be  levied  by  the  rule 
of  uniformity  and  must  be  apportioned.  From  this  assumed  pre- 
mise it  is  argued  that  death  duties  cannot  be  shifted  from  the  one 

323 


3^4 


American   Government  and   Politics 


The 

Constitution, 
not  political 
economy,  the 
guide  in 
explaining 
the  term 
"direct." 


on  whom  they  are  5rst  cast  by  law,  and  therefore  they  are  direct 
taxes  requiring  apportionment. 

The  fallacy  is  in  the  premise.  It  is  true  that  in  the  income  tax 
cases  the  theory  of  certain  economists  by  which  direct  and  indirect 
taxes  are  classified  with  reference  to  the  ability  to  shift  the  same 
was  adverted  to.  But  this  disputable  theory  was  not  the  basis  of  the 
conclusion  of  the  court.  The  constitutional  meaning  of  the  word 
direct  was  the  matter  decided.  Considering  that  the  constitutional 
rule  of  apportionment  had  its  origin  in  the  puq^ose  to  prevent  taxes 
on  persons  solely  because  of  their  general  ownership  of  property 
from  being  levied  by  any  other  rule  than  that  of  apportionment,  two 
things  were  decided  by  the  court :  First,  that  no  sound  distinction 
existed  between  a  tax  levied  on  a  person  solely  because  of  his 
general  ownership  of  real  property,  and  the  same  tax  imposed  solely 
because  of  his  general  ownership  of  personal  property.  Secondly, 
that  the  tax  on  the  income  derived  from  such  property,  real  or 
personal,  was  the  legal  equivalent  of  a  direct  tax  on  the  property 
from  which  said  income  was  derived,  and  hence  must  be  ap- 
portioned. These  conclusions,  however,  lend  no  support  to  the 
contention  that  it  was  decided  that  duties,  imposts  and  excises 
which  are  not  the  essential  equivalent  of  a  tax  on  property  generally, 
real  or  personal,  solely  because  of  its  ownership,  must  be  converted 
into  direct  taxes,  because  it  is  conceived  that  it  would  be  demon- 
strated by  a  close  analysis  that  they  could  not  be  shifted  from  the 
person  upon  whom  they  first  fall.  The  proposition  now  relied  upon 
was  considered  and  refuted  in  Nicol  v.  Ames,  173  U.S.  509,  515, 
where  the  court  said  : 

"The  commands  of  the  Constitution  in  this,  as  in  all  other 
respects,  must  be  obeyed ;  direct  taxes  must  be  apportioned,  while 
indirect  taxes  must  be  uniform  throughout  the  United  States.  But 
while  yielding  impUcit  obedience  to  these  constitutional  require- 
ments, it  is  no  part  of  the  duty  of  this  court  to  lessen,  impede  or 
obstruct  the  exercise  of  the  taxing  power  by  merely  abstruse  and 
subtle  distinctions  as  to  the  particular  nature  of  a  specified  tax, 
where  such  distinction  rests  more  upon  the  differing  theories  of 


Taxation  and   Finance 


3^5 


political  economists  than  upon  the  practical  nature  of  the  tax 
itself. 

"  In  deciding  upon  the  validity  of  a  tax  with  reference  to  these 
requirements,  no  microscopic  examination  as  to  the  purely  eco- 
nomic or  theoretical  nature  of  the  tax  should  be  indulged  in. for  the 
purpose  of  placing  it  in  a  category  which  would  invalidate  the  tax. 
As  a  mere  abstract,  scientific  or  economical  problem,  a  particular 
tax  might  possibly  be  regarded  as  a  direct  tax,  when  as  a  practical 
matter  pertaining  to  the  actual  operation  of  the  tax  it  might  quite 
plainly  appear  to  be  indirect.  Under  such  circumstances,  and 
while  varying  and  disputable  theories  might  be  indulged  as  to  the 
real  nature  of  the  tax,  a  court  would  not  be  justified,  for  the  purpose 
of  invalidating  the  tax,  in  placing  it  in  a  class  different  from  that  to 
which  its  practical  results  would  consign  it.  Taxation  is  eminently 
practical,  and  is,  in  fact,  brought  to  every  man's  door,  and  for  the 
purpose  of  deciding  upon  its  validity  a  tax  should  be  regarded  in  its 
actual,  practical  results,  rather  than  with  reference  to  those  theoreti- 
cal or  abstract  ideas  whose  correctness  is  the  subject  of  dispute  and 
contradiction  among  those  who  are  experts  in  the  science  of  political 
economy." 

Concluding,  then,  that  the  tax  under  consideration  is  not  direct 
within  the  meaning  of  the  Constitution,  but,  on  the  contrary,  is  a 
duty  or  excise,  we  are  brought  to  consider  the  question  of  uniformity. 

The  contention  is  that  because  the  statute  exempts  legacies  and 
distributive  shares  in  personal  property  below  ten  thousand  dollars, 
because  it  classifies  the  rate  of  tax  according  to  the  relationship  or 
absence  of  the  relationship  of  the  taker  to  the  deceased,  and  pro- 
vides for  a  rate  progressing  by  the  amount  of  the  legacy  or  share, 
therefore  the  tax  is  repugnant  to  that  portion  of  the  first  clause  of 
section  8  of  article  i  of  the  Constitution,  which  provides  that  "the 
duties,  imposts  and  excises  shall  be  uniform  throughout  the  United 
States." 

On  the  one  side,  the  proposition  is  that  the  command  that  duties, 
imposts  and  excises  shall  be  uniform  throughout  the  United  States 
relates  to  the  inherent  and  intrinsic  character  of  the  tax;    that  it 


Inheritance 
tax  a  duty 
or  excise. 

Does  the 
progressive 
feature  vio- 
hitc  the 
uniformity 
clause? 


Two  views 
of  the 
uniformity 
rule. 


326  American  Government  and  Politics 

contemplates  the  operation  of  the  tax  upon  the  property  of  the 
individual  taxpayer,  and  exacts  that  when  an  impost,  duty  or  excise 
is  levied,  it  shall  operate  precisely  in  the  same  manner  upon  all 
individuals;  that  is  to  say,  the  proposition  is  that  "uniform 
throughout  the  United  States"  commands  that  excises,  duties  and 
imposts  when  levied,  shall  be  equal  and  uniform  in  their  operation 
upon  persons  and  property  in  the  sense  of  the  meaning  of  the  words 
equal  and  uniform,  as  now  found  in  the  constitutions  of  most  of 
the  States  in  the  Union.  The  contrary  construction  is  this:  That 
the  words  "  uniform  throughout  the  United  States"  do  not  relate  to 
the  inherent  character  of  the  tax  as  respects  its  operation  on  individ- 
uals, but  simply  requires  that  whatever  plan  or  method  Congress 
adopts  for  laying  the  tax  in  question,  the  same  plan  and  the  same 
method  must  be  made  operative  throughout  the  United  States; 
that  is  to  say,  that  whenever  a  subject  is  taxed  anywhere,  the  same 
must  be  taxed  everywhere  throughout  the  United  States,  and  at  the 
same  rate.  The  two  contentions  then  may  be  summarized  by 
saying  that  the  one  asserts  that  the  Constitution  prohibits  the  levy 
of  any  duty,  impost  or  excise  which  is  not  intrinsically  equal  and 
uniform  in  its  operation  uj)on  individuals,  and  the  other  that  the 
power  of  Congress  in  levying  the  taxes  in  question  is  by  the  terms 
of  the  Constitution  restrained  only  by  the  requirements  that  such 
taxes  be  geographically  uniform. 

...  By  the  result  of  an  analysis  of  the  history  of  the  adoption  of 
the  Constitution  it  becomes  plain  that  the  words  "  uniform  through- 
out the  United  States"  do  not  signify  an  intrinsic  but  simply  a 
geographical  uniformity.  We  add  that  those  who  opposed  the 
ratification  of  the  Constitution  clearly  understood  that  the  uniform- 
ity clause  as  to  taxation  imported  but  a  geographical  uniformity  and 
made  the  fact  a  distinct  ground  of  complaint.  Thus  in  a  report 
made  to  the  legislature  of  Maryland  by  Luther  Martin :  "  Though 
there  is  a  provision  that  all  duties,  imposts,  and  excises  shall  be 
uniform  —  that  is,  to  be  laid  to  the  same  amount  on  the  same  articles 
in  each  state  —  yet  this  will  not  prevent  Congress  from  having  it  in 
their  power  to  cause  them  to  fall  very  unequally  and  much  heavier 


Taxation  and  Finance 


327 


on  some  states  than  on  others,  because  these  duties  may  be  laid  on 
articles  but  little  or  not  at  all  used  in  some  other  states  and  of 
absolute  necessity  for  the  use  and  consumption  in  others." 


135.    The  Apportionment  of  Direct  Taxes 

The  obvious  injustice  of  the  rule  requiring  direct  taxes  to  be 
apportioned  among  the  states  on  the  basis  of  population  rather  than 
wealth  has  prevented  a  frequent  use  of  the  power  of  Congress  to 
lay  such  taxes.  The  manner  in  which  it  is  done  is  illustrated  by 
this  extract  from  the  law  of  1861  raising  war  revenues:  — 

Sec.  8.  And  he  it  further  enacted,  That  a  direct  tax  of  twenty 
milUons  of  dollars  be  and  is  annually  laid  upon  the  United  States 
and  the  same  shall  be  and  is  hereby  apportioned  to  the  states  re- 
spectively in  the  manner  following : 

To  the  State  of  Maine,  four  hundred  and  twenty  thousand  eight 
hundred  and  twenty-six  dollars. 

To  the  State  of  New  Hampshire,  two  hundred  and  eighteen 
thousand  four  hundred  and  six  and  two-thirds  dollars. 

To  the  State  of  Vermont,  two  hundred  and  eleven  thousan  '  and 
sixty-eight  dollars.  [Here  follow  all  the  other  States  and  Territories 
in  the  Union  with  their  respective  apportionments.] 

Sec.  13 .  And  be  it  further  enacted,  That  the  said  direct  tax  laid  by 
this  act  shall  be  assessed  and  laid  on  the  value  of  all  lands  and  lots 
of  ground,  with  their  improvements  and  dwelling  houses,  which 
several  articles  subject  to  taxation  shall  be  enumerated  and  valued 
by  the  respective  assessors  [appointed  by  the  President  and  Senate 
for  each  tax  district  in  the  Union]  at  the  rate  each  of  them  is  worth 
in  money  on  the  first  day  of  April,  eighteen  hundred  and  sixty- 
two.  .  .  . 

Sec.  53.  And  be  it  further  enacted,  That  any  State  or  Territory 
and  the  District  of  Columbia  rnay  lawfully  assume,  assess,  collect, 
and  pay  into  the  Treasury  of  the  United  States  the  direct  tax  or  its 
quota  thereof,  imposed  by  this  act  upon  the  State,  Territory,  or  the 
District  of  Columbia,  in  its  own  way  and  manner,  by  and  through 
its  own  ofiScers,  assessors,  and  collectors.  .  .  . 


The  appor- 
tionment. 


The  tax 
to  be  laid 
on  lands 
and  im- 
provements 
by  federal 
officers. 


Each  state 
or  territory 
may  assume 
and  collect 
its  quota. 


328 


American   Government  and  Politics 


The 

question 

stated. 


Arguments 
on  the 
merits 
of  an 
income  tax. 


Income 
tax  is  a 
direct  tax. 


136.    The  Income  Tax 

In  1895,  the  Supreme  Court  declared  unconstitutional  the  federal 
income  tax  law  passed  by  Congress  the  year  before  and  in  the  con- 
clusion of  a  lengthy  opinion,  Chief  Justice  Fuller  laid  down  the 
following  general  principles. 

We  are  now  permitted  to  broaden  the  field  of  inquiry,  and  to 
determine  to  which  of  the  two  great  classes  a  tax  upon  a  person's 
entire  income,  whether  derived  from  rents,  or  products,  or  other- 
wise, of  real  estate,  or  from  bonds,  stocks,  or  other  forms  of  personal 
property,  belongs;  and  we  are  unable  to  conclude  that  the  en- 
forced subtraction  from  the  yield  of  all  the  owner's  real  or  personal 
property,  in  the  manner  prescribed,  is  so  different  from  a  tax  upon 
the  property  itself,  that  it  is  not  a  direct,  but  an  indirect  tax,  in  the 
meaning  of  the  Constitution.  .  .  . 

Elaborate  argument  is  made  as  to  the  efficacy  and  merits  of  an 
income  tax  in  general,  as  on  the  one  hand,  equal  and  just,  and  on 
the  other,  elastic  and  certain ;  not  that  it  is  not  open  to  abuse  by 
such  deductions  and  exemptions  as  might  make  taxation  under  it  so 
wanting  in  uniformity  and  equaUty  as  in  substance  to  amount  to 
deprivation  of  property  without  due  process  of  law;  not  that  it  is 
not  open  to  fraud  and  evasion  and  is  inquisitorial  in  its  methods ; 
but  because  it  is  preeminently  a  tax  upon  the  rich,  and  enables  the 
burden  of  taxes  on  consumption  and  of  duties  on  imports  to  be 
sensibly  diminished.  And  it  is  said  that  the  United  States  as  "  the 
representative  of  an  indivisible  nationahty,  as  a  political  sovereign 
equal  in  authority  to  any  other  on  the  face  of  the  globe,  adequate  to 
all  emergencies,  foreign  or  domestic,  and  having  at  its  command 
for  offence  and  defence  and  for  all  governmental  purposes  all  the 
resources  of  the  nation,"  would  be  "but  a  maimed  and  crippled 
creation  after  all,"  unless  it  possesses  the  power  to  lay  a  tax  on  the 
income  of  real  and  personal  property  throughout  the  United  States 
without  apportionment. 

The  power  to  tax  real  and  personal  property  and  the  income 
from  both,  there  being  an  apportionment,  is  conceded;  that  such  a 


Taxation  and   Finance  ^29 

tax  is  a  direct  tax  in  the  meaning  of  the  Constitution  has  not  been, 
and,  in  our  judgment,  cannot  be  successfully  denied ;  and  yet  we 
are  thus  invited  to  hesitate  in  the  enforcement  of  the  mandate  of 
the  Constitution,  which  prohibits  Congress  from  laying  a  direct 
tax  on  the  revenue  from  property  of  the  citizen  without  regard  to 
State  lines,  and  in  such  manner  that  the  States  cannot  intervene 
by  payment  in  regulation  of  their  own  resources,  lest  a  government 
of  delegated  powers  should  be  found  to  be,  not  less  powerful,  but 
less  absolute,  than  the  imagination  of  the  advocate  had  supposed. 

We  are  not  here  concerned  with  the  question  whether  an  income    Court  has 
tax  be  or  be  not  desirable,  nor  whether  such  a  tax  would  enable  the   ^  J;"^  ^^ 
government  to  diminish  taxes  on  consumption  and  duties  on  im-   desirability 
ports,  and  to  enter  on  what  may  be  believed  to  be  a  reform  of  its 
fiscal  and  commercial  system.     Questions  of  that  character  belong 
to  the  controversies  of  pohtical  parties,  and  cannot  be  settled  by 
judicial  decision.     In  these  cases  our  province  is  to  determine 
whether  this  income  tax  on  the  revenue  from  property  does  or  does 
not  belong  to  the  class  of  direct  taxes.     If  it  does,  it  is,  being  un- 
apportioned,  in  violation  of  the  Constitution,  and  we  must  so 
declare. 

Our  conclusions  may,  therefore,  be  summed  up  as  follows :  Conclusions, 

First.  We  adhere  to  the  opinion  already  announced,  that, 
taxes  on  real  estate  being  indisputably  direct  taxes,  taxes  on  the 
rents  or  income  of  real  estate  are  equally  direct  taxes. 

Second.  We  are  of  opinion  that  taxes  on  personal  property  or 
on  the  income  of  personal  property,  are  likewise  direct  taxes. 

Third.  The  tax  imposed  by  sections  twenty-seven  to  thirty- 
seven,  inclusive,  of  the  act  of  1894,  so  far  as  it  falls  on  the  income 
of  real  estate  and  of  personal  property,  being  a  direct  tax  within 
the  meaning  of  the  Constitution,  and,  therefore,  unconstitutional 
and  void  because  not  apportioned  according  to  representation,  all 
those  sections,  constituting  one  entire  scheme  of  taxation,  are 
necessarily  invalid. 


330 


American  Government  and   Politics 


Violation 
of  the 
spirit  and 
letter 
considered. 


137.    The  Constitutionality  of  the  Protective  Tariff 

There  is  no  express  warrant  in  the  Constitution  for  the  use  of 
the  taxing  power  to  benefit  any  industries  of  the  country  or  any 
class  of  persons,  but  Congress  has  been  guided  by  the  general  spirit 
and  intent  of  the  Constitution  rather  than  the  positive  letter  of  the 
law.  The  strict  constructionist  view  of  the  taxing  power  is  thus 
described  in  a  paper  prepared  by  Calhoun :  — 

The  General  Government  is  one  of  specific  powers,  and  it  can 
rightfully  exercise  only  the  powers  expressly  granted,  and  those 
that  may  be  necessary  and  proper  to  carry  them  into  effect,  all 
others  being  reserved  expressly  to  the  States  or  the  people.  It 
results,  necessarily,  that  those  who  claim  to  exercise  power  under 
the  Constitution,  are  bound  to  show  that  it  is  expressly  granted, 
or  that  it  is  necessary  and  proper  as  a  means  to  some  of  the  granted 
powers.  The  advocates  of  the  Tariff  have  offered  no  such  proof. 
It  is  true  that  the  third  section  of  the  first  article  of  the  Constitu- 
tion authorizes  Congress  to  lay  and  collect  an  impost  duty,  but  it 
is  granted  as  a  tax  power  for  the  sole  purpose  of  revenue,  —  a  power 
in  its  nature  essentially  different  from  that  of  imposing  protective 
or  prohibitory  duties.  Their  objects  are  incompatible.  The 
prohibitory  system  must  end  in  destroying  the  revenue  from 
imports. 

It  has  been  said  that  the  system  is  a  violation  of  the  spirit,  and 
not  the  letter  of  the  Constitution.  The  distinction  is  not  material. 
The  Constitution  may  be  as  grossly  violated  by  acting  against  its 
meaning  as  against  its  letter;  but  it  may  be  proper  to  dwell  a 
moment  on  the  point  in  order  to  understand  more  fully  the  real 
character  of  the  acts  under  which  the  interest  of  this,  and  other 
States  similarly  situated,  has  been  sacrificed.  The  facts  are  few 
and  simple.  The  Constitution  grants  to  Congress  the  power  of 
imposing  a  duty  on  imports  for  revenue,  which  power  is  abused  by 
being  converted  into  an  instrument  of  rearing  up  the  industry  of 
one  section  of  the  country  on  the  ruins  of  another.  The  violation, 
then,  consists  in  using  a  power  granted  for  one  object  to  advance 


Taxation  and   Finance  331 

another,  and  that  by  the  sacrifice  of  the  original  object.  It  is,  in 
a  word,  a  violation  by  perversion,  —  the  most  dangerous  of  all 
because  the  most  insidious  and  difficult  to  resist.  .  .  . 


138.   Social  Implications  of  the  Taxing  Power 

Some  of  the  ways  in  which  the  taxing  power  may  be  used  to 
benefit  certain  classes  of  the  community  so  that  the  general  level 
of  civilization  may  be  raised  are  suggested  by  President  Roosevelt 
in  his  message  of  December,  1907  :  — 

When  our  tax  laws  are  revised  the  question  of  an  income  tax  The  income 
and  an  inheritance  tax  should  receive  the  careful  attention  of  our 
legislators.  In  my  judgment  both  of  these  taxes  should  be  part 
of  our  system  of  Federal  taxation.  I  speak  diffidently  about  the 
income  tax  because  one  scheme  for  an  income  tax  was  declared 
unconstitutional  by  the  Supreme  Court;  while  in  addition  it  is  a 
difficult  tax  to  administer  in  its  practical  working,  and  great  care 
would  have  to  be  exercised  to  see  that  it  was  not  evaded  by  the  very 
men  whom  it  was  most  desirable  to  have  taxed,  for  if  so  evaded  it 
would,  of  course,  be  worse  than  no  tax  at  all ;  as  the  least  desirable 
of  all  taxes  is  the  tax  which  bears  heavily  uj^on  the  honest  as  com- 
pared with  the  dishonest  man.  Nevertheless,  a  graduated  income 
tax  of  the  proper  type  would  be  a  desiralile  feature  of  Federal 
taxation,  and  it  is  to  be  hoped  that  one  may  be  devised  which  the 
Supreme  Court  will  declare  constitutional. 

The  inheritance  tax,  however,  is  both  a  far  better  method  of  J^^ 
taxation,  and  far  more  important  for  the  purpose  of  having  the  ^^x. 
fortunes  of  the  country  bear  in  proportion  to  their  increase  in  size 
a  corresponding  increase  and  burden  of  taxation.  The  Govern- 
ment has  the  absolute  right  to  decide  as  to  the  terms  upon  which 
a  man  shall  receive  a  bequest  or  devise  from  another,  and  this 
point  in  the  devolution  of  property  is  especially  appropriate  for 
the  imposition  of  a  tax.  Laws  imposing  such  ta.xes  have  repeatedly 
been  placed  upon  the  National  statute  books  and  as  repeatedly 
declared  constitutional  by  the  courts,  and  these  laws  contained 


33^ 


American   Government  and  Politics 


the  progressive  principle,  that  is,  after  a  certain  amount  is  reached 
the  bequest  or  gift,  in  life  or  death,  is  increasingly  burdened  and 
the  rate  of  taxation  is  increased  in  proportion  to  the  remoteness 
of  blood  of  the  man  receiving  the  bequest. 

These  principles  are  recognized  already  in  the  leading  civilized 
nations  of  the  world.  In  Great  Britain  all  the  estates  worth 
$5,000  or  less  are  practically  exempt  from  death  duties,  while  the 
increase  is  such  that  when  an  estate  exceeds  five  millions  of  dollars 
in  value  and  passes  to  a  distant  kinsman  or  stranger  in  blood  the 
Government  receives  all  told  an  amount  equivalent  to  nearly  a 
fifth  of  the  whole  estate.  In  France  so  much  of  an  inheritance  as 
exceeds  $10,000,000  pays  over  a  fifth  to  the  State  if  it  passes  to  a 
distant  relative.  The  German  law  is  especially  interesting  to  us 
because  it  makes  the  inheritance  tax  an  imperial  measure,  while 
allotting  to  the  individual  States  of  the  empire  a  portion  of  the 
proceeds  and  permitting  them  to  impose  taxes  in  addition  to  those 
imposed  by  the  Imperial  Government.  Small  inheritances  are 
exempt,  but  the  tax  is  so  sharply  progressive  that  when  the  inheri- 
tance is  still  not  very  large,  provided  it  is  not  an  agricultural  or  a 
forest  land,  it  is  taxed  at  the  rate  of  25  per  cent,  if  it  goes  to  distant 
relatives.  There  is  no  reason  why  in  the  United  States  the  Na- 
tional Government  should  not  impose  inheritance  taxes  in  addition 
to  those  imposed  by  the  States,  and  when  wc  last  had  an  inheritance 
tax  about  one-half  of  the  States  levied  such  ta.xes  concurrently 
with  the  National  Government,  making  a  combined  maximum 
rate,  in  some  cases  as  high  as  25  per  cent.  The  French  law  has 
one  feature  Vi-hich  is  to  be  heartily  commended.  The  progressive 
principle  is  so  applied  that  each  higher  rate  is  imposed  only  on  the 
excess  above  the  amount  subject  to  the  next  lower  rate;  so  that 
each  increase  of  rate  will  apply  only  to  a  certain  amount  above  a 
certain  maximum.  The  tax  should  if  possible  be  made  to  bear 
more  heavily  upon  those  residing  without  the  country  than  within 
it. 

A  heavy  progressive  tax  upon  a  very  large  fortune  is  in  no  way 
such  a  tax  upon  thrift  or  industry  as  a  hke  tax  would  be  on  a  small 


Taxation  and  Finance 


333 


fortune.  No  advantage  comes  either  to  the  country  as  a  whole 
or  to  the  individuals  inheriting  the  money  by  permitting  the  trans- 
mission in  their  entirety  of  the  enormous  fortunes  which  would 
be  affected  by  such  a  tax;  and  as  an  incident  to  its  function  of 
revenue  raising,  such  a  tax  would  help  to  preserve  a  measurable 
equality  of  opportunity  for  the  people  of  the  generations  growing 
to  manhood.  .  .  .  Our  aim  is  to  recognize  what  Lincoln  pointed 
out:  The  fact  that  there  are  some  respects  in  which  men  are  ob- 
viously not  equal,  but  also  to  insist  that  there  should  be  an  equality 
of  self-respect  and  of  mutual  respect,  an  equality  of  rights  before 
the  law,  and  at  least  an  approximate  equality  in  the  conditions 
under  which  each  man  obtains  the  chance  to  show  the  stuff  that 
is  in  him  when  compared  to  his  fellows. 


139.   Preparation  of  a  Revenue  Bill 

A  slight  notion  of  the  difficult  task  which  devolves  upon  the 
committee  of  ways  and  means  and  its  chairman  in  the  preparation 
of  a  general  tariff  act  is  given  in  the  following  interesting  extract 
from  the  memoirs  of  Mr.  Dingley :  — 

The  preparation  of  the  Dingley  tariff  bill  began  on  the  evening  Republican 
of  December  10,  .  .  .  when  the  Republican  members  of  the  ways   J^^^^the^ 
and  means  committee  met  in  the  committee  room  and  voted  "to   initiative, 
begin  a  tariff  bill  and  have  it  ready  for  an  extra  session  of  con- 
gress." ... 

The  room  of  the  committee  on  ways  and  means  in  the  National  The  Com- 
house  in  December,  1896,  when  the  preparation  of  the  Dingley  Room, 
tariff  bill  was  begun,  was  the  largest  and  most  commodious  in  the 
capitol.  The  library  had  about  four  thousand  volumes  covering 
very  completely  the  subjects  of  tariff  and  finance.  An  open  fire- 
place and  inviting  easy  chairs,  made  this  committee  room  a  gen- 
eral reception  room  for  those  desiring  private  conferences  with 
prominent  members  of  congress.  Chairman  Dingley  was  sought 
after  more  than  any  other  member  of  congress,  unless  it  was  the 
speaker;    and  he  always  received  all  with  uniform  courtesy.     In 


J34 


American  Government  and   Politics 


the  center  of  the  room  stood  a  large  table  around  which  were  ar- 
ranged 17  chairs.  Along  the  edge  of  the  table  directly  in  front  of 
each  chair,  was  a  small  silver  plate  on  which  was  engraved  the 
name  of  the  member  of  the  committee  occupying  the  seat.  Chair- 
man Dingley  sat  at  the  head  of  the  table  farthest  from  the  door 
with  Sereno  E.  Payne  of  New  York  on  his  right  and  John  Dalzell 
of  Pennsylvania  on  his  left.  .  .  . 

The  series  of  tariff  hearings  by  the  committee  on  ways  and 
means  began  December  28  and  closed  January  11.  The  com- 
mittee room  was  crowded  at  every  hearing,  and  representatives  of 
all  the  leading  lines  of  industry  were  present.  Chairman  Dingley 
presided  over  these  hearings,  listening  to  and  commenting  on  the 
mass  of  testimony. 

Wednesday,  January  13,  the  Republican  members  of  the  com- 
mittee began  the  framing  of  the  tariff  bill,  in  rooms  they  had  en- 
gaged at  the  Cochran  hotel,  immediately  opposite  the  Hamilton 
house,  ■ —  centrally  located  and  convenient  to  the  chairman.  It 
took  two  weeks  and  two  days  to  complete  the  first  draft  of  the 
Dingley  tariff  bill,  and  get  the  printed  copies  ready  for  congress. 
The  Republican  members  of  the  committee  worked  almost  unin- 
terruptedly during  this  period  in  the  preparation  of  the  bill.  It 
was  a  tremendous  task.  Schedule  by  schedule,  paragraph  by 
paragraph,  the  entire  bill  was  constructed  with  great  care  and 
precision.  Mr.  Dingley  was  the  guiding  spirit,  all  yielding  to  his 
judgment,  knowledge  and  tact.  During  these  conferences  various 
interests  often  clashed,  but  the  chairman  was  always  ready  with 
some  compromise  or  plan  of  procedure  that  seemed  to  satisfy  all. 
With  rare  shrewdness  he  succeeded  in  adjusting  all  differences 
and  in  harmonizing  the  several  parts  of  this  important  measure. 
His  associates  had  implicit  confidence  in  him  and  regarded  him 
as  students  regard  a  wise  and  noble  instructor. 

Many  amusing  events  transpired  during  the  preliminary  prep- 
aration of  the  Dingley  tariff  bill,  some  of  them  at  the  expense  of 
the  chairman,  who  was  always  so  absorbed  in  the  seriousness  of 
his  work  as  to  forget  the  humorous  side  of  life.     Mr.  Dingley,  it 


Taxation  and   Finance  23S 

is  related,  was  very  anxious  to  have  a  duty  on  kindling  wood. 
Most  of  the  members  associated  kindling  wood  with  their  wood 
piles  at  their  back  doors  and  were  inclined  to  poke  fun  at  the  chair- 
man. They  were  not  aware  of  the  fact  that  in  many  of  the  northern 
states  there  was  a  regular  industry  of  manufacturing  kindling  wood 
and  putting  it  on  the  market  in  bundles.  Mr.  Dingley  proceeded 
to  argue  in  favor  of  a  duty  on  this  article  and  took  seriously  the 
objections  raised  by  some  of  the  members  who  objected  in  a  spirit 
of  pure  fun.     But  the  duty  on  kindling  wood  was  agreed  to. 

Shortly  afterwards,  Mr.  Tawney  of  Minnesota,  became  inter-  Duty  on 
ested  in  a  duty  on  enamelled  shoe  strings.  So  one  morning  he  ^  °^^  "°^^' 
asked  to  have  the  schedule  which  he  had  prepared,  considered  by 
the  Republican  members.  The  chairman,  who  was  overwhelmed 
with  requests  and  anxious  to  complete  the  first  draft  of  the  bill, 
said,  perhaps  with  some  haste:  "We  have  no  time  now  for  such 
trifling  matters."  Mr.  Tawney  with  more  spirit  than  he  now 
wishes  he  had  displayed,  replied:  "Mr.  Chairman,  I  think  shoe 
strings  are  as  important  as  kindhng  wood."  The  other  members 
including  the  chairman  joined  in  a  hearty  laugh  and  proceeded  to 
consider  other  sections  of  the  bill. 

Chairman  Dingley  sat  at  the  head  of  the  table,  Mr.  Payne  on  The  three 
his  right  and  Mr.  Dalzell  on  his  left.  These  three  men  were  the  ^^  ^"' 
Republican  triumvirate  in  the  preparation  of  the  first  draft  of  the 
bill.  So  great  was  the  chairman's  confidence  in  the  judgment  of 
these  two  men,  that  he  unconsciously  conferred  with  them  alone, 
and  in  a  low  voice  on  the  rates  to  be  agreed  upon,  and  in  a  quiet 
way  would  say:  "If  there  is  no  objection  it  will  be  the  sense  of  the 
committee  that  the  rate  of  duty  on  such  and  such  an  article  shall 
be  so  and  so." 

Some  of  the  younger  Republican  members  at  the  foot  of  the   ^  mild  joke 
table,  while  having  implicit  confidence  in  the  chairman  and  his   chairman 
two  leading  associates,  conspired  to  play  a  mild  joke  on  the  chair- 
man.    They  agreed  to    object  and  vote  down    the  chairman  on 
some  minor  matter  the  next  time  the  chairman  talked  in  a  low  tone 
to  Messrs.  Payne  and  Dalzell,  and  put  the  question.     The  three 


33^ 


American  Government  and  Politics 


The 

chairman's 
mastery 
of  the 
situation. 


The  bill 
reported  to 
the  House. 


heads  came  together  in  close  consultation  and  the  chairman  in  his 
accustomed  manner  without  looking  up  from  the  table  said:  "If 
there  is  no  objection  the  committee  will  agree  upon  a  duty  of  60 
percent."  Mr.  Tawney  said :  "Mr.  Chairman,  we  object  and  ask 
for  a  vote."  "Well,  well,"  said  the  chairman,  looking  over  the 
top  of  his  eye  glasses  with  a  surprised  look  on  his  face,  —  "of 
course  we  can  take  a  vote  if  it  is  so  desired."  "We  desire  it," 
said  Mr.  Tawney.  The  vote  was  taken  and  the  motion  defeated, 
much  to  the  chairman's  amazement.  The  mischievous  members 
of  the  committee  laughed  and  explained  their  joke  with  the  sug- 
gestion that  the  triumvirate  occasionally  take  cognizance  of  the 
physical  presence  of  the  other  Republican  members.  .  .  . 

When  the  matter  of  imposing  a  duty  on  Angora  goat  hair  was 
completed  the  chairman  heaved  a  sigh  of  relief  and  said:  "There, 
that  disposes  of  the  goat."  "Yes,"  said  Mr.  Dolliver,  "but  the 
importers  in  six  months  will  make  another  goat." 

Mr.  Dingley's  accurate  knowledge  of  tariff  schedules,  rates 
and  classifications  was  the  marvel  of  his  associates;  and  of  all  who 
conferred  with  him  relative  to  proposed  duties.  His  mind  was  a 
reservoir  of  facts  and  figures  which  he  marshaled  as  a  general 
marshals  his  soldiers  —  by  companies  and  battalions.  Thousands 
of  suggestions,  verbally  and  by  letter  were  given  him,  and  figures 
and  percentages  and  claims  were  presented  until  any  ordinary 
mind  would  have  been  hopelessly  confused.  But  from  this  mass 
he  was  able  to  discern  unerringly  the  true  and  the  false,  and  to 
pluck  out  the  kernel  of  the  whole  thing.  His  parlor  at  the  Hamil- 
ton house  was  the  headquarters  of  all  interested  in  tariff  legislation. 
His  desks  and  tables  were  covered  with  books,  papers,  pads  with 
figures,  official  documents  and  newspapers.  Experts  in  certain 
lines  of  business  called  upon  him  to  make  suggestions,  and  were 
amazed  to  learn  that  the  chairman  of  the  committee  knew  all 
about  their  particular  industry  —  the  process  of  manufacture  and 
the  technical  terms.  .  .  . 

On  the  1 8th  of  March  the  ways  and  means  committee  by  a 
party  vote  ordered  the  chairman  to  report  the  tariff  bill.     That 


Taxation  and   Finance  337 

evening  before  the  fire  in  his  private  apartments  at  the  Hamilton 
house,  Mr.  Dingley  with  remarkable  speed,  wrote  with  a  pencil 
on  a  pad,  the  famous  report  which  accompanied  the  tariff  bill  on 
the  following  day.  In  this  report,  Mr.  Dingley  pointed  out  that 
"for  nearly  four  years  the  revenue  has  been  inadequate  to  meet 
the  current  expenditures  and  pay  the  interest  on  the  war  debt. 
This  clearly  justifies  the  convention  of  congress  to  devise  a  prompt 
and  adequate  remedy.  Nearly  two  hundred  and  three  miUion 
dollars  of  the  two  hundred  and  ninety-three  million  dollars  of 
borrowed  gold  have  been  used  to  supply  an  insufficiency  of  rev- 
enue." He  showed  how  the  tariff  of  1890  was  practically  nullified 
by  anticipated  reduction  of  duties  in  1892  and  1893.  He  added 
that  "  an  imperative  duty  resting  on  this  congress  is  to  so  adjust 
duties  in  a  revision  of  the  tariff  as  to  secure  needed  revenue  to 
carry  on  the  government  and  to  protect  the  many  industries  which 
have  so  seriously  suffered  in  the  past  three  years  from  unequal 
foreign  competition,  and  from  the  consequent  loss  of  purchasing 
power  of  the  masses  of  the  people  upon  which  the  demand  for 
products  and  the  prosperity  of  every  citizen  depend." 

Mr.  Dingley  was  loudly  applauded  when  on  the  following  day 
he  reported  the  tariff  bill  to  the  house.  It  was  agreed  to  begin 
debate  March  22  and  to  have  the  final  vote  March  31. 

140.   An  Extract  from  the  Dingley  Tariff  Act 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  on 
and  after  the  passage  of  this  Act,  unless  otherwise  specially  pro- 
vided for  in  this  Act,  there  shall  be  levied,  collected  and  paid 
upon  all  articles  imported  from  foreign  countries  and  men- 
tioned in  the  schedules  herein  contained,  the  rates  of  duty 
which  are,  by  the  schedules  and  paragraphs,  respectively  pre- 
scribed, namely : 

Schedule  A.  —  Chemicals,  Oils,  and  Paints. 

I.    Acids:     Acetic    or    pyroligneous   acid,    not   exceeding   the 


338 


American  Government  and   Politics 


specific  gravity  of  one  and  forty-seven  one-thousandths,  three- 
fourths  of  one  cent  per  pound;  exceeding  the  specific  gravity 
of  one  and  forty-seven  one-thousandths,  two  cents  per  pound; 
boracic  acid,  five  cents  per  pound;  chromic  acid  and  lactic  acid, 
three  cents  per  pound;  citric  acid,  seven  cents  per  pound;  sali- 
cylic acid,  ten  cents  per  pound;  sulphuric  acid  or  oil  of  vitrol  not 
specially  provided  for  in  this  act,  one  fourth  of  one  cent  per  pound ; 
tannic  acid  or  tannin,  fifty  cents  per  pound;  gaUic  acid,  ten  cents 
per  pound ;  tartaric  acid,  seven  cents  per  pound ;  all  other  acids 
not  specially  provided  for  in  this  Act,  twenty-five  per  centum 
ad  valorem. 

2.  All  alcholic  perfumery,  including  cologne  water  and  other 
toilet  waters  and  toilet  preparations  of  all  kinds,  containing  alcohol 
or  in  the  preparation  of  which  alcohol  is  used,  and  alcoholic  com- 
pounds not  specially  provided  for  in  this  Act,  sixty  cents  per  pound 
and  forty-five  per  centum  ad  valorem.  .  .  . 

[Here  follow  the  remaining  schedules:  B.  Earths,  Earthen- 
ware, and  Glassware;  C.  Metals  and  Manufactures  of;  D. 
Wood  and  Manufactures  thereof ;  E.  Sugar,  Molasses  and  Manu- 
factures thereof;  F.  Tobacco  and  Manufactures  thereof;  G. 
Agricultural  Products  and  Provisions;  H.  Spirits,  Wines,  and 
other  Beverages;  I.  Cotton  Manufactures;  J.  Flax,  Hemp, 
Jute  and  Manufactures  of ;  K.  Wool  and  Manufactures  of  Wool ; 
L.  Silk  and  Silk  Goods;  M.  Pulp,  Papers,  and  Books;  N. 
Sundries.  1 


141.    Obtaining  Estimates  for  Appropriations 

The  bewildering  details  to  be  secured  in  preparing  a  single  item 
of  appropriation  are  shown  in  this  testimony  by  Mr.  Putnam, 
Librarian  of  Congress,  and  by  Mr.  Green,  taken  in  a  hearing  of  a 
committee  charged  with  the  consideration  of  appropriations  for 
the  Library. 

Mr.  Littauer.  Now,  as  to  matters  of  detail,  in  the  general 
administration  of  your  own  office,  you  have  two  stenographers 
and  typewriters,  at  $1,000  each.     Do  you  find  necessity  for  two? 


Taxation  and   Finance 


339 


Mr.  Putnam.  I  am  using  three  all  through  this  period  of  the 
season, 

Mr.  Littauer.  What  work  requires  so  much  stenographic 
employment  ? 

Mr.  Putnam.  Of  ordinary  letters  passing  through  the  office 
we  have  about  30,000  a  year  from  all  over  the  country. 

Mr.  Brick.    What  are  they  about  ? 

Mr.  Putnam.    More  and  more  we  are  becoming  a  sort  of  bureau   ^^^  extent 
of  information  for  peopl.e  throughout  the  country,  especially  on   correspond- 
bibliographic    subjects.     People    write    to    us    for    bibliographic   ence. 
information,  as  to  whether  there  is  in  the  library  material  on  certain 
subjects,  or  where  it  may  be  found.     It  is  bibliographic  information 
that  we  feel  called  upon  to  give.     There  are  about  10,000  of  those. 
That  disposes  of  about  a  third  of  our  correspondence ;    and  we 
are  in  constant  communication  with  the  libraries  throughout  the 
country,  of  course,  upon  matters  of  library  administration  in  which 
we   are   all   interested.     There  is  a  correspondence,   constantly 
going  on  in  connection  with  applications,  and  so  on.     Then  there 
is    miscellaneous    correspondence    regarding    the    solicitation   of 
material,  and  so  on.     This  correspondence,  however,  is  independ- 
ent of  that  which  goes  on  in  every  division  of  the  Library.     This 
is  for  my  office  alone. 

Mr.  Tawney.  These  30,000  letters  pass  through  your  office 
alone  ? 

Mr.  Putnam.   Yes. 

Mr.  Brick.  That  swells  the  force,  and  also  makes  it  necessary 
to  attend  to  that  correspondence  ? 

Mr.  Putnam.  Yes.  Many  letters  are  written  merely  for  the 
transmittal  of  memoranda  compiled  in  another  division  of  the 
Library.  We  may  be  called  upon  to  say  whether  a  certain  map 
corresponds  with  some  official  or  historic  map  that  may  be  men- 
tioned, and  we  send  that  inquiry  to  the  map  division,  and  they  for- 
ward the  data  from  which  the  answer  is  prepared.  It  is  a  large 
correspondence. 

Mr.  Livingston.    Now,  let  us  come  down  to  business  on  that 


340 


American  Government  and  Politics 


proposition,  Mr.  Putnam.  Thirty  thousand  letters  a  year  is 
2,500  a  month,  and  92  letters  a  day,  divided  between  three  sten- 
ographers. That  would  be  thirty  letters  for  each  one  per  day. 
Do  you  think  that  is  a  good  day's  work  ? 

Mr.  Putnam.  That  is  part  of  their  work  only.  I  think  it  would 
be  a  very  good  day's  work  on  letters  of  more  than  one  page  each ; 
but  of  course  they  are  attending  also  to  the  records  in  my  office 
and  to  miscellaneous  work  besides  that.  One  of  them  has  to 
handle  correspondence  that  comes  in  relative  to  remittances  for 
our  card  distribution.  Then  they  have  to  index  the  letter  books, 
and  keep  the  files,  and  so  on.  When  a  Senator  whites  to  us  about 
a  transaction  and  refers  to  it  a  year  later,  he  wants  us  to  be  able  to 
refer  to  the  correspondence  immediately. 

Mr.  Littauer.   Where  do  you  get  the  third  stenographer  from  ? 

Mr.  Putnam.  The  special  roll,  generally.  We  have  an  al- 
lowance of  $2,000  a  year  to  be  expended  in  special  temporary 
service. 

Mr.   Livingston.    What  is  the  chief  stenographer's  salary? 

Mr.  Putnam.  The  law  provides  two  stenographers  and  type- 
writers, to  receive  $1,000  each.  .  .  . 

Mr.  Tawney.  How  much  fuel  do  you  purchase  under  this 
appropriation  ? 

Mr.  Green.  About  3,400  tons  or  3,500  tons,  I  should  think, 
I  bought  this  year. 

Mr.  Tawney.    Where  did  you  get  it? 

Mr.  Green.  From  the  dealers  in  town  here.  We  advertise 
for  it  every  year. 

Mr.  Tawney.    Is  there  any  competition  in  bids  ? 

Mr.  Green.  Oh,  yes.  We  advertise  in  the  newspapers.  We 
get  all  that  come,  sometimes  four,  and  sometimes  six  or  eight. 

Mr.  Tawney.     What  do  you  pay  a  ton  ? 

Mr.  Green.  I  do  not  recollect  exactly  what  it  is  this  year, 
but  it  is  something  like  $5.30  —  something  like  that. 

Mr.  Tawney.    Is  that  delivered  at  the  Library? 

Mr.  Green.    Yes;  delivered  and  dumped  into  our  vaults. 


Taxation  and   Finance  341 

Mr.  Livingston.  Are  these  bids  straight  or  do  they  contain 
rebates  ? 

Mr.  Green.   They  are  straight ;  there  are  no  rebates. 

Mr.  Tawney.    How  many  tons  did  you  say  ? 

Mr.  Green.  I  think  this  year  it  amounts  to  3,500  tons.  It 
makes  the  total  expenditure  for  that  something  Hke  $17,000  out 
of  $32,500  that  we  got. 

Congress  often  obtains  estimates  for  appropriations  for  specific 
objects  by  directing  joint  resolutions  to  some  executive  officer  in 
the  following  manner:  — 

Resolved  by  the  Senate  (the  House  of  Representatives  concur- 
ring), That  the  Secretary  of  War  be  directed  to  transmit  to  the 
Senate  an  estimate  of  the  cost  of  deepening  the  channel  of  Curtis 
Bay,  Baltimore  Harbor,  in  Maryland,  to  thirty  feet,  and  widening 
the  channel  to  two  hundred  and  fifty  feet;  and  also  an  estimate 
of  the  cost  of  increasing  the  depth  of  the  main  ship  channel  of  the 
Patapsco  River  and  Baltimore  Harbor  to  thirty-five  feet  and  the 
width  thereof  to  one  thousand  feet. 

Passed  the  Senate  January  19,  1901. 

Passed  the  House  of  Representatives  January  22,  1901. 

142.   Extract  from  an  Appropriation  Bill 

This  brief  extract  illustrates  the  manner  in  which  Congress 
may  go  into  very  specific  details  in  making  appropriations :  — 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  following 
sums  be,  and  the  same  arc  hereby,  appropriated,  out  of  any  money 
in  the  Treasury  not  otherwise  appropriated,  in  full  compensation 
for  the  service  of  the  fiscal  year  ending  June  thirtieth,  nineteen  hun- 
dred and  seven,  for  the  objects  hereinafter  expressed  namely:  .  .  . 

For  compensation  of  the  President  of  the  United  States,  fifty 
thousand  dollars.^ 

For  compensation  of  the  Vice-President  of  the  United  States,   Provisions 
eight  thousand  dollars.^  executive 

1  Now  $75,000  per  annum.  ^  Now  $12,000  per  annum.  department. 


34^  American   Government  and   Politics 

For  compensation  to  the  following  in  the  office  of  the  President 
of  the  United  States:  Secretary,  five  thousand  dollars,  two  assistant 
secretaries,  at  three  thousand  dollars  each ;  executive  clerk,  two 
thousand  five  hundred;  executive  clerk  and  disbursing  officer, 
two  thousand  dollars ;  seven  clerks  at  two  thousand  dollars  each ; 
one  clerk  of  class  four;  one  clerk,  of  class  four  who  shall  be  a 
telegrapher;  fcnir  clerks  of  class  three;  one  clerk  of  class  two; 
steward,  one  thousand  eight  hundred  dollars;  chief  door  keeper, 
one  thousand  eight  hundred  dollars;  eight  door  keepers  at  one 
thousand  two  hundred  dollars  each ;  four  messengers  at  one 
thousand  two  hundred  dollars  each ;  five  messengers  at  nine  hun- 
dred dollars  each;  watchman,  nine  hundred  dollars;  one  fireman, 
laborer,  seven  hundred  and  twenty  dollars;  laborer,  six  hundred 
dollars;  in  all  sixty-six  thousand  three  hundred  and  forty  dollars: 
Provided,  That  employees  of  the  Excutive  Departments  and  other 
establishments  of  the  executive  branch  of  the  Government  may  be 
detailed  from  time  to  time  to  the  office  of  the  President  of  the  United 
States  for  such  temporary  assistance  as  may  be  necessary. 
Contingent  For  contingent  expenses   of   the   Executive   Office,   including 

expenses.  stationery  therefor,  as  well  as  record  books,  telegrams,  telephones, 
books  for  library,  furniture  and  carpets  for  offices,  care  of  office 
carriages,  horses,  and  harness,  and  miscellaneous  items,  to  be 
expended  in  the  discretion  of  the  President,  twenty  thousand 
dollars.  .  .  . 


CHAPTER  XIX 

THE   REGULATION   OF   COMMERCE 

143.    Constitutional  Provisions 

The  following  clauses  of  the  federal  Constitution  especially 
relate  to  the  regulation  of  commerce  by  Congress :  — 

The  Congress  shall  have  power  ...  to  regulate  commerce 
with  foreign  nations,  and  among  the  several  states,  and  with  the 
Indian  tribes. 

To  make  all  laws  which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  powers,  and  all  other  powers  vested 
by  this  Constitution  in  the  government  of  the  United  States,  or 
in  any  department,  or  officer  thereof.     (Art.  I,  sec.  8.) 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  state. 
No  preference  shall  be  given  by  any  regulation  of  commerce  or 
revenue  to  the  ports  of  one  state  over  those  of  another;  nor  shall 
vessels  bound  to,  or  from,  one  state  be  obliged  to  enter,  clear,  or 
pay  duties  in  another.     (Art.  I,  sec.  9.) 

The  citizens  of  each  state  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  states.     (Art.  IV,  sec.  2.) 

No  state  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  and  immunities  of  citizens  of  the  United  States,  nor  shall 
any  state  deprive  any  person  of  life,  liberty,  or  property  without 
due  process  of  law,  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws.     (Amendment  XIV,  sec.  i.) 

144.   Judicial  Interpretation  of  the  Term  "Commerce" 

The  first  great  judicial  construction  of  the  term  "Commerce" 
was  made  in  1824  by  Chief  Justice  Marshall  in  the  case  of  Gibbons 
V.  Ogden.     The  opinion  rendered  on  that  occasion,  from  which 

343 


344 


American  Government  and  Politics 


only  a  brief  extract  can  be  given  here,  "  is  the  basis  of  all  subsequent 
decisions  construing  the  commerce  clause,  and  is  the  recognized 
source  of  authority." 

The  words  are:  "Congress  shall  have  power  to  regulate  com- 
merce with  foreign  nations,  and  among  the  several  states  and  with 
the  Indian  tribes."  The  subject  to  be  regulated  is  commerce: 
and  our  constitution  being,  as  was  aptly  said  at  the  bar,  one  of 
enumeration,  and  not  of  definition,  to  ascertain  the  extent  of  the 
power  it  becomes  necessary  to  settle  the  meaning  of  the  word.  The 
counsel  for  the  appellee  would  limit  it  to  traffic,  to  buying  and 
selling  or  the  interchange  of  commodities,  and  do  not  admit  that 
it  comprehends  navigation.  This  would  restrict  a  general  term, 
applicable  to  many  objects,  to  one  of  its  significations.  Com- 
merce undoubtedly  is  traffic,  but  it  is  something  more;  it  is  inter- 
course. It  describes  the  commercial  intercourse  between  nations, 
and  parts  of  nations,  in  all  its  branches,  and  is  regulated  by  pre- 
scribing rules  for  carrying  on  that  intercourse.  The  mind  can 
scarcely  conceive  a  system  for  regulating  commerce  between 
nations,  which  shall  exclude  all  laws  concerning  navigation, 
which  shall  be  silent  on  the  admission  of  the  vessels  of  the  one 
nation  into  the  ports  of  the  other,  and  be  confined  to  prescribing 
rules  for  the  conduct  of  individuals,  in  the  actual  employment  of 
buying  and  selling,  or  of  barter. 

If  commerce  does  not  include  navigation,  the  government  of 
the  Union  has  no  direct  power  over  that  subject,  and  can  make 
no  law  prescribing  what  shall  constitute  American  vessels,  or  re- 
quiring that  they  shall  be  navigated  by  American  seamen.  Yet 
this  power  has  been  exercised  from  the  commencement  of  the 
government,  has  been  exercised  with  the  consent  of  all,  and  has 
been  understood  by  all  to  be  a  commercial  regulation.  All  America 
understands,  and  has  uniformly  understood,  the  word  "commerce" 
to  comprehend  navigation.  It  was  so  understood,  and  must  have 
been  so  understood,  when  the  constitution  was  framed.  The 
power  over  commerce,  including  navigation,  was  one  of  the  primary 
objects  for  which  the  people  of  America  adopted  their  govern- 


The   Regulation  of  Commerce  345 

ment  and  must  have  been  contemplated  in  forming  it.  The 
convention  must  have  used  the  word  in  that  sense;  because  all 
have  understood  it  in  that  sense,  and  the  attempt  to  restrict  it 
comes  too  late.  .  .  . 

The  universally  acknowledged  power  of  the  government  to  im-  The  power 
pose  embargoes,  must  also  be  considered  as  showing  that  all  embargoes. 
America  is  united  in  that  construction  which  comprehends  naviga- 
tion in  the  word  commerce.  Gentlemen  have  said,  in  argument, 
that  this  is  a  branch  of  the  war-making  power,  and  that  an  embargo 
is  an  instrument  of  war,  not  a  regulation  of  trade.  That  it  may 
be,  and  often  is,  used  as  an  instrument  of  war  cannot  be  denied. 
An  embargo  may  be  imposed  for  the  purpose  of  facilitating 
the  equipment  or  manning  of  a  fleet,  or  for  the  purpose  of  con- 
cealing the  progress  of  an  expedition  preparing  to  sail  from  a 
particular  port.  In  these,  and  in  similar  cases,  it  is  a  military 
instrument,  and  partakes  of  the  nature  of  war.  But  all  embargoes 
are  not  of  this  description.  They  are  sometimes  resorted  to  with- 
out a  view  to  war,  and  with  a  single  view  to  commerce.  In  such 
a  case,  an  embargo  is  no  more  a  war  measure  than  a  merchantman 
is  a  ship  of  war,  because  both  are  vessels  which  navigate  the  ocean 
with  sails  and  seamen.  When  Congress  imposed  that  embargo 
which,  for  a  time,  engaged  the  attention  of  every  man  in  the  United 
States,  the  avowed  object  of  the  law  was  the  protection  of  commerce, 
and  the  avoiding  of  war.  By  its  friends  and  its  enemies  it  was 
treated  as  a  commercial,  not  as  a  war  measure.  .  .  .  The  word 
used  in  the  constitution,  then,  comprehends,  and  has  been  always 
understood  to  comprehend,  navigation  within  its  meaning;  and 
a  power  to  regulate  navigation  is  as  expressly  granted  as  if  that 
term  had  been  added  to  the  word  "commerce." 

To  what  commerce  does  this  power  extend?     The  constitution   Every 

•    r  ,1     •  t     r       •  •  1  1        species  of 

mforms  us,  to  commerce     with  foreign  nations,  and  among  the   commercial 
several  states,  and  with  the  Indian  tribes."     It  has,  we  believe,    intercourse 
been  universally  admitted  that  these  words  comprehend  every 
species  of  commercial  intercourse  between  the  United  States  and 
foreign  nations.     No  sort  of  trade  can  be  carried  on  between  this 


346 


American  Government  and   Politics 


country  and  any  other,  to  which  this  power  does  not  extend.  It 
has  been  truly  said,  that  commerce,  as  the  word  is  used  in  the  con- 
stitution, is  a  unit,  every  part  of  which  is  indicated  by  the  term. 
If  this  be  the  admitted  meaning  of  the  word,  in  its  application  to 
foreign  nations,  it  must  carry  the  same  meaning  throughout  the 
sentence,  and  remain  a  unit,  unless  there  be  some  plain  intelligible 
cause  which  alters  it. 

The  subject  to  which  the  power  is  next  applied,  is  to  commerce 
"among  the  several  states."  The  word  "among"  means  inter- 
mingled with.  A  thing  which  is  among  others  is  intermingled 
with  them.  Commerce  among  the  states  cannot  stop  at  the  exter- 
nal boundary  line  of  each  state,  but  may  be  introduced  into  the 
interior. 

It  is  not  intended  to  say  that  these  words  comprehend  that  com- 
merce which  is  completely  internal,  which  is  carried  on  between 
man  and  man  in  a  state,  or  between  different  parts  of  the  same 
state,  and  which  does  not  extend  to  or  affect  other  states.  Such  a 
power  would  be  inconvenient  and  is  certainly  unnecessary. 

Comprehensive  as  the  word  "among"  is,  it  may  very  properly 
be  restricted  to  that  commerce  which  concerns  more  states  than 
one.  The  phrase  is  not  one  which  would  probably  have  been  se- 
lected to  indicate  the  completely  interior  traffic  of  a  state,  because 
it  is  not  an  apt  phrase  for  that  purpose ;  and  the  enumeration  of 
the  particular  classes  of  commerce  to  which  the  power  was  to  be 
extended,  would  not  have  been  made  had  the  intention  been  to 
extend  the  power  to  every  description.  .  .  .  The  genius  and  char- 
acter of  the  whole  government  seem  to  be,  that  its  action  is  to  be 
applied  to  all  the  external  concerns  of  the  nation,  and  to  those 
internal  concerns  which  affect  the  states  generally;  but  not  to 
those  which  are  completely  \vithin  a  particular  state,  which  do  not 
affect  other  states,  and  with  which  it  is  not  necessary  to  interfere, 
for  the  purpose  of  executing  some  of  the  general  powers  of  the 
government.  The  completely  internal  commerce  of  a  state,  then, 
may  be  considered  as  reserved  for  the  state  itself. 

But,  in  regulating  commerce  with  foreign  nations,  the  power 


The   Regulation   of  Commerce  347 

of  Congress  does  not  stop  at  the  jurisdictional  lines  of  the  several  How  foreign 
states.     It  would  be  a  very  useless  power  if  it  could  not  pass  those   penetrates 
lines.     The  commerce  of  the  United  States  with  foreign  nations   the  interior 
is  that  of  the  whole  United  States.     Every  district  has  a  right  to 
participate  in  it.     The  deep  streams  which  penetrate  our  country 
in  every  direction,  pass  through  the  interior  of  almost  every  state 
in  the  Union,  and  furnish  the  means  of  exercising  this  right.     If 
Congress  has  the  power  to  regulate  it,  that  power  must  be  exer- 
cised wherever  the  subject  exists.     If  it  exists  within  the  states,  if  a 
foreign  voyage  may  commence  or  terminate  at  a  port  within  a 
state,  then  the  power  of  Congress  may  be  exercised  within  a  state. 

This  principle  is,  if  possible,  still  more  clear,  when  applied  to  How 
commerce  "among  the  several  states."  They  either  join  each  commerce  is 
other,  in  which  case  they  are  separated  by  a  mathematical  line,  conducted, 
or  they  are  remote  from  each  other,  in  which  case  other  states  lie 
between  them.  What  is  commerce  "  among"  them ;  and  how  is  it 
to  be  conducted  ?  Can  a  trading  expedition  between  two  adjoin- 
ing states  commence  and  terminate  outside  of  each  ?  And  if  the 
trading  intercourse  be  between  two  states  remote  from  each  other, 
must  it  not  commence  in  one,  terminate  in  the  other,  and  probably 
pass  through  a  third?  Commerce  among  the  states  must,  of 
necessity,  be  commerce  with  the  states.  In  the  regulation  of  trade 
with  the  Indian  tribes,  the  action  of  the  law,  especially  when  the 
constitution  was  made,  was  chiefly  within  a  state.  The  power  of 
Congress  then,  whatever  it  may  be,  must  be  exercised  within  the 
territorial  jurisdiction  of  the  several  states.  The  sense  of  the 
nation,  on  this  subject,  is  unequivocally  manifested  by  the  pro-, 
visions  made  in  the  laws  for  transporting  goods,  by  land,  between 
Baltimore  and  Providence,  between  New  York  and  Philadelphia, 
and  between  Philadelphia  and  Baltimore. 

We  are  now  arrived  at  the  inquiry,  What  is  this  power  ?     It  is  The 
the  power  to  regulate  ;  that  is,  to  prescribe  the  rule  by  which  com-   f°^Jnte° 
merce  is  to  be  governed.     This  power,  like  all  others  vested  in 
Congress,  is  complete  in  itself,  may  be  exercised  to  its  utmost 
extent,  and  acknowledges  no  limitations,  other  than  are  prescribed 


34^  American  Government  and  Politics 

in  the  constitution.  These  are  expressed  in  plain  terms,  and  do  not 
affect  the  questions  which  arise  in  this  case,  or  which  have  been 
discussed  at  the  bar.  If,  as  has  always  been  understood,  the  sover- 
eignty of  Congress,  though  limited  to  specified  objects,  is  plenary 
as  to  those  objects,  the  power  over  commerce  with  foreign  nations, 
and  among  the  several  States  is  vested  in  Congress  as  absolutely 
as  it  would  be  in  a  single  government,  having  in  its  constitution 
the  same  restrictions  on  the  exercise  of  the  power  as  are  found  in  the 
constitution  of  the  United  States.  The  wisdom  and  the  discretion 
of  Congress,  their  identity  with  the  people,  and  the  influence  which 
their  constituents  possess  at  elections,  are,  in  this,  as  in  many 
other  instances,  as  that,  for  example,  of  declaring  war,  the  sole  re- 
straints on  which  they  have  relied,  to  secure  them  from  its  abuse. 
They  are  the  restraints  on  which  the  people  must  often  rely  solel", 
in  all  representative  governments. 

145.   State  Interference  with  Interstate  Commerce 

The  Consdtution  does  not  expressly  give  to  Congress  the  exclu- 
sive power  to  regulate  interstate  commerce,  and  even  if  it  did,  the 
difficulty  would  still  remain  of  drawing  the  line  between  acts  affect- 
ing commerce  wholly  within  a  state  and  acts  affecting  commerce  with 
other  states.  The  Supreme  Court  has  attempted  to  do  this  by  lay- 
ing down  the  general  rule  that  subjects  which  admit  of  one  uniform 
system  or  plan  of  regulation  are  national  in  character  falling 
within  the  scope  of  the  exclusive  power  of  Congress,  while  limited 
or  local  matters  not  national  in  character  may  be  regulated  by  the 
state,  in  case  Congress  has  not  acted  with  regard  to  them.  Not- 
withstanding this  general  rule,  the  Courts  must  consider  on  its 
merits  each  case  in  which  it  is  claimed  that  an  action  of  a  state 
constitutes  an  interference  with  interstate  commerce.  The  method 
of  dealing  ^vith  such  matters  is  illustrated  by  the  following  opinion 
declaring  void  a  Pennsylvania  law  laying  a  tax  on  all  freight  carried 
in  the  state  even  though  destined  to  points  without  the  common- 
wealth. 


The 
question 

stated.  —  so  far  as  it  imposes  a  tax  on  freight  taken  up  within  the  State 


The  case  presents  the  question  whether  the  statute  in  question. 


The  Regulation  of  Commerce  349 

and  carried  out  of  it,  or  taken  up  outside  the  State  and  delivered 
within  it,  or,  in  different  words,  upon  all  freight  other  than  that 
taken  up  and  delivered  within  the  State  —  is  not  repugnant  to  the 
provision  of  the  Constitution  of  the  United  States  which  ordains 
"that  Congress  shall  have  power  to  regulate  commerce  with  foreign 
nations  and  among  the  several  States,"  or  in  conflict  with  the  pro- 
vision that  "no  State  shall,  without  the  consent  of  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports,  except  what  may  be 
absolutely  necessary  for  executing  its  inspection  laws." 

The  question  is  a  grave  one.  It  calls  upon  us  to  trace  the  line.  Taxation 
always  difficult  to  be  traced,  between  the  Hmits  of  State  sovereignty  merce. 
in  imposing  taxation,  and  the  power  and  duty  of  the  Federal 
government  to  protect  and  regulate  interstate  commerce.  While, 
upon  the  one  hand,  it  is  of  the  utmost  importance  that  the  States 
should  possess  the  power  to  raise  revenue  for  all  the  purposes  of 
a  state  government,  by  any  means,  and  in  any  manner  not  incon- 
sistent with  the  powers  which  the  people  of  the  States  have  con- 
ferred upon  the  General  Government,  it  is  equally  important  that 
the  domain  of  the  latter  should  be  preserved  free  from  invasion, 
and  that  no  State  legislation  should  be  sustained  which  defeats  the 
avowed  purposes  of  the  Federal  Constitution,  or  which  assumes 
to  regulate,  or  control  subjects  committed  by  that  Constitution 
exclusively  to  the  regulation  of  Congress. 

Before   proceeding,  however,  to  a  consideration  of   the  direct  ^^^  nature 

.    .       ,.  n.  .  ,  .   .  of  the  tax 

question  whether  the  Statute  IS  m  direct  conflict  with  any  provision  in  question, 
of  the  Constitution  of  the  United  States,  it  is  necessary  to  have  a 
clear  apprehension  of  the  subject  and  the  nature  of  the  tax  imposed 
by  it.  It  has  repeatedly  been  held  that  the  constitutionality,  or 
unconstitutionality  of  a  State  tax  is  to  be  determined,  not  by  the 
form  or  agency  through  which  it  is  to  be  collected,  but  by  the  sub- 
ject upon  which  the  burden  is  laid.  .  .  . 

Upon  what,  then,  is  the  tax  imposed  by  the  act  of  August  2i:th,   '^^^^  ^^^  '^ 

,  ,  ,  •        laid  o"  'he 

1864,  to   be   considered   as   laid  ?     Where    does   the   substantial   freight 
burden  rest?    Very  plainly  it  was  not  intended  to  be,  nor  is  it  in   carried, 
fact,  a  tax  upon  the  franchise  of  the  carrying  companies,  or  upon 


3SO 


American   Government  and   Politics 


Does  it 
affect 
interstate 
commerce? 


Any  impo- 
sition is  a 
restraint 
on  trade. 


their  property,  or  upon  their  business  measured  by  the  "number  of 
tons  of  freight  carried.  On  the  contrary,  it  is  expressly  laid  upon 
the  freight  carried.  The  companies  are  required  to  pay  to  the  State 
treasurer  for  the  use  of  the  Commonwealth,  "on  each  two  thousand 
pounds  of  freight  so  carried,"  a  tax  at  the  specified  rates.  And 
this  tax  is  not  proportioned  to  the  business  done  in  transportation. 
It  is  the  same  whether  the  freight  be  moved  one  mile  or  three  hun- 
dred. If  freight  be  put  upon  a  road  and  carried  at  all,  tax  is  to  be 
paid  upon  it,  the  amount  of  the  tax  being  determined  by  the 
character  of  the  freight.  .  .  . 

Considering  it,  then,  as  manifest  that  the  tax  demanded  by  the 
act  is  imposed,  not  upon  the  company,  but  upon  the  freight  car- 
ried, we  proceed  to  inquire  whether,  so  far  as  it  affects  commodi- 
ties transported  through  the  State,  or  from  points  without  the  State 
to  points  within  it,  or  from  points  within  the  State  to  points  without 
it,  the  act  is  a  regulation  of  interstate  commerce.  Beyond  all 
question  the  transportation  of  freight,  or  of  the  subjects  of  com- 
merce, for  the  purpose  of  exchange  or  sale,  is  a  constituent  of  com- 
merce itself.  This  has  never  been  doubted,  and  probably  the 
transportation  of  articles  from  one  State  to  another  was  the  promi- 
nent idea  in  the  minds  of  the  framers  of  the  Constitution,  when 
to  Congress  was  committed  the  power  to  regulate  commerce  among 
the  several  States.  A  power  to  prevent  embarrassing  restrictions 
by  any  State  was  the  thing  desired.  The  power  was  given  by  the 
same  words  and  in  the  same  clause  by  which  was  conferred  power 
to  regulate  commerce  with  foreign  nations.  It  would  be  absurd 
to  suppose  that  the  transmission  of  the  subjects  of  trade  from  the 
State  to  the  buyer,  or  from  the  place  of  production  to  the  market, 
was  not  contemplated,  for  without  that  there  could  be  no  consum- 
mated trade  either  with  foreign  nations  or  among  the  States.  .  .  . 

The  same  power  that  may  impose  a  tax  of  two  cents  per  ton  upon 
coal  carried  out  of  the  State,  may  impose  one  of  five  dollars.  Such 
an  imposition,  whether  large  or  small,  is  a  restraint  of  the  privilege 
or  right  to  have  the  subjects  of  commerce  pass  freely  from  one  State 
to  another  without  being  obstructed  by  the  intervention  of  State 


The   Regulation  of  Commerce  351 

lines.  It  would  hardly  be  maintained,  we  think,  that  had  the  State 
estabhshed  custom-houses  on  her  borders,  wherever  a  railroad  or 
canal  comes  to  the  State  line,  and  demanded  at  these  houses  a 
duty  for  allowing  merchandise  to  enter  or  leave  the  State  upon 
one  of  those  railroads  or  canals,  such  an  imposition  would  not  have 
been  a  regulation  of  commerce  with  her  sister  States.  Yet  it  is 
difficult  to  see  any  substantial  difference  between  the  supposed 
case  and  the  one  we  have  in  hand.  The  goods  of  no  citizen  of 
New  York,  New  Jersey,  Ohio,  or  of  any  other  State,  may  be  placed 
upon  a  canal,  railroad,  or  steamboat  within  the  State  for  trans- 
portation any  distance,  either  into  or  out  of  the  State,  without 
being  subjected  to  the  burden.  Nor  can  it  make  any  difference 
that  the  legislative  purpose  was  to  raise  money  for  the  support  of 
the  State  government,  and  not  to  regulate  transportation.  It  is 
not  the  purpose  of  the  law,  but  its  effect,  which  we  are  now  con- 
sidering. .  .  . 

Interstate  transportation  of  passengers  is  beyond  the  reach  of  A  tax  on 
a  State  legislature.  And  if  State  taxation  of  persons  passing  from  ^^yolj^*^"^^ 
one  State  to  another,  or  a  State  tax  upon  interstate  transportation 
of  passengers  is  unconstitutional,  a  fortiori,  if  possible,  is  a  State 
tax  upon  the  carriage  of  merchandise  from  State  to  State,  in  con- 
flict with  the  Federal  Constitution.  Merchandise  is  the  subject 
of  commerce.  Transportation  is  essential  to  commerce ;  and 
every  burden  laid  upon  it  is  pro  tanto  a  restriction.  Whatever, 
therefore,  may  be  the  true  doctrine  respecting  the  exclusiveness 
of  the  power  vested  in  Congress  to  regulate  commerce  among  the 
States,  we  regard  it  as  established  that  no  State  can  impose  a  tax 
upon  freight  transported  from  State  to  State,  or  upon  the  trans- 
porter because  of  such  transportation. 

But  while  holding  this,  we  recognize  fully  the  power  of  each  Conclusion 
State  to  tax  at  its  discretion  its  own  internal  commerce,  ad  the 
franchises,  property,  or  business  of  its  own  corporations,  so  that 
interstate  intercourse,  trade,  or  commerce,  be  not  embarrassed  or 
restricted.  That  must  remain  free.  The  conclusion  of  the  whole 
is  that,  in  our  opinion,  the  act  of  the  legislature  of  Pennsylvania 


2^2  American  Government  and   Politics 

of  August  25th,  1864,  so  far  as  it  applies  to  articles  carried  through 
the  State,  or  articles  taken  up  in  the  State  and  carried  out  of  it, 
or  articles  taken  up  without  the  State  and  brought  into  it,  is 
unconstitutional  and  void. 


146.    The  Condition  of  Transportation  in  1885 

Although  the  federal  and  state  governments  lavished  aid  upon 
railway  corporations  in  the  form  of  land  grants,  subsidies,  and 
franchises,  it  was  a  long  time  before  any  serious  attempt  was  made 
to  protect  the  public  from  discriminations  and  exorbitant  charges 
by  common  carriers.  At  last  in  1885  an  important  Senate  com- 
mittee was  appointed  to  investigate  conditions  of  transportation 
throughout  the  United  States  and  make  recommendations  for 
federal  legislation.  Largely  on  the  basis  of  the  report  of  this  com- 
mittee the  Interstate  Commerce  Act  was  passed  in  1887.  The 
specific  abuses  against  which  the  legislation  was  directed  are 
thus  stated  by  the  Senate  committee :  — 

Theap-  The  committee  was  appointed  by  the  President  of  the  Senate 

the  com-    °    March  21,  1885,  under  authority  of  a  resolution  adopted  by  the 
inittee.  Senate  of  the  United  States  March  17, 1885,  and  reading  as  follows : 

Resolved,  That  a  select  committee  of  five  Senators  be  appointed 
to  investigate  and  report  upon  the  subject  of  the  regulation  of  the 
transportation  by  railroad  and  water  routes  in  connection  or  in 
competition  with  said  railroads  of  freight  and  passengers  between 
the  several  States,  with  authority  to  sit  during  the  recess  of  Con- 
gress, and  with  power  to  summon  witnesses  and  to  do  whatever  is 
necessary  for  a  full  examination  of  the  subject,  and  report  to  the 
Senate  on  or  before  the  second  Monday  of  December  next.  Said 
committee  shall  have  power  to  appoint  a  clerk  and  stenographer, 
and  the  expenses  of  such  investigation  shall  be  paid  from  the 
appropriation  for  expenses  of  inquiries  and  investigations  ordered 
by  the  Senate. 
The  compli-  The  committee  began  its  work  impressed  with  the  importance 
the  question  ^^  ^^^  duty  with  which  it  had  been  charged,  and  with  each  step 
taken  in  prosecuting  the  inquiry  directed  has  realised  more  fully 


the  investi- 
gation. 


The   Regulation  of  Commerce  353 

how  serious  were  the  obstacles  to  be  overcome  in  attempting  to 
faithfully  carry  out  its  instructions.  The  field  opened  up  for  in- 
vestigation was  so  extensive,  the  social,  economic,  legal,  and  other 
questions  involved  so  complicated,  and  the  agricultural,  commercial, 
industrial,  and  corporate  interests  affected  so  vast  and  varied  as  to 
require  for  a  thorough  and  satisfactory  examination  into  technical 
details  more  time  and  labor  than  could  be  given,  with  the  facilities 
at  command,  during  the  summer  recess  of  the  Senate.  .  .  . 

The  conclusion  was  reached  that  the  committee  would  best  serve  Purpose  of 
the  public  interest  and  carry  out  the  purpose  of  the  resolution  under 
which  it  was  appointed  by  devoting  its  attention  mainly  to  the 
consideration  of  the  question  whether  any  legislation  to  regulate 
the  management  of  the  transportation  lines  of  the  country  is  ad- 
visable, and,  if  so,  what  the  scope  and  character  of  that  legislation 
should  be.  This  is  the  question  that  awaits  the  decision  of  the 
Congress.  .  .  . 

The  committee  recognizes  the  justice  of  this  demand,  and  be- 
lieves that  action  by  Congress  looking  to  the  regulation  of  inter- 
state transportation  is  necessary  and  expedient,  for  the  following 
reasons : 

1.  The  public  interest  demands  regulation  of  the  business  of  The  carrier, 
transportation   because,   in  the  absence  of  such  regulation,  the  ^^^  situa- 
carrier  is  practically  and  actually  the  sole  and  final  arbiter  upon  all  tion. 
disputed  questions  that  arise  between  shipper  and  carrier  as  to 
whether  rates  are  reasonable  or  unjust  discrimination  has  been 
practiced.  .  .  . 

2.  It  is  the  duty  of  Congress  to  undertake  the  regulation  of  the 
business  of  transportation,  because  of  admitted  abuses  in  its  man- 
agement and  of  acknowledged  discriminations  between  persons 
and  places  in  its  practical  operation  —  evils  which  it  is  possible  to 
reach  and  remedy  only  through  the  exercise  of  the  powers  granted 
by  the  Constitution  to  Congress,  and  against  which  the  citizen  is 
entitled  to  the  protection  and  relief  the  national  authority  can 
alone  afford.  .  .  . 

4.  National  legislation  is  also  necessary,  because  the  business  of 


354 


American   Government  and   Politics 


Transpor- 
tation is 
national. 


The 

complaints 
against  the 
railways. 


High  rates. 


Discrimi- 
nations. 


Rebates. 


transportation  is  essentially  of  a  nature  which  requires  that  uni- 
form system  and  method  of  regulation  which  the  national  authority 
can  alone  prescribe.  .  .  . 

5.  The  failure  of  Congress  to  act  is  an  excuse  for  the  attempts 
made  by  the  railroads  to  regulate  the  commerce  of  the  country  in 
their  own  way  and  in  their  own  interests  by  whatever  combina- 
tions and  methods  they  are  able  to  put  into  operation.  .  .  . 

The  complaints  against  the  railroad  system  of  the  United  States 
expressed  to  the  committee  are  based  upon  the  following  charges: 

1.  That  local  rates  are  unreasonably  high,  compared  with 
through  rates. 

2.  That  both  local  and  through  rates  are  unreasonably  high  at 
non-competing  points,  either  from  the  absence  of  competition  or 
in  consequence  of  pooling  agreements  that  restrict  its  operation. 

3.  That  rates  are  established  without  apparent  regard  to  the 
actual  cost  of  the  service  performed,  and  are  based  largely  on  "what 
the  traffic  will  bear." 

4.  That  unjustifiable  discriminations  are  constantly  made  be- 
tween individuals  in  the  rates  charged  for  like  service  under  simi- 
lar circumstances. 

5.  That  improper  discriminations  are  made  between  articles  of 
freight  and  branches  of  business  of  a  like  character,  and  between 
different  quantities  of  the  same  class  of  freight. 

6.  That  unreasonable  discriminations  are  made  between  locali- 
ties similarly  situated. 

7.  That  the  effect  of  the  prevailing  policy  of  railroad  manage- 
ment is,  by  an  elaborate  system  of  secret  special  rates,  rebates, 
drawbacks,  and  concessions,  to  foster  monopoly,  to  enrich  favorite 
shippers,  and  to  prevent  free  competition  in  many  lines  of  trade  in 
which  the  item  of  transportation  is  an  important  factor. 

8.  That  such  favoritism  and  secrecy  introduce  an  element  of 
uncertainty  into  legitimate  business  that  greatly  retards  the  de- 
velopment of  our  industries  and  commerce. 

9.  That  the  secret  cutting  of  rates  and  the  sudden  fluctuations 
that  constantly  take  pjlace  are  demoralizing  to  all  business  except 


The   Regulation  of  Commerce  355 

that  of  a  purely  speculative  character,  and  frequently  occasion 
great  injustice  and  heavy  losses. 

10.  That,  in  the  absence  of  national  and  uniform  legislation,  the   Avoidance 
railroads  are  able  by  various  devices  to  avoid  their  responsibility  sibility. 
as  carriers,  especially  on  shipments  over  more  than  one  road  or 

from  one  State  to  another,  and  that  shippers  find  great  ditficulty  in 
recovering  damages  for  the  loss  of  property  or  injury  thereto. 

11.  That  railroads  refuse  to  be  bound  by  their  own  contracts, 
and  arbitrarily  collect  large  sums  in  the  shape  of  overcharges  in 
addition  to  the  rates  agreed  upon  at  the  time  of  shipment. 

12.  That  railroads  often  refuse  to  recognize  or  be  responsible 
for  the  acts  of  dishonest  agents  acting  under  their  authority. 

13.  That  the  common  law  fails  to  afford  a  remedy  for  such 
grievances,  and  that  in  cases  of  dispute  the  shipper  is  compelled 
to  submit  to  the  decision  of  the  railroad  manager  or  pool  com- 
missioner, or  run  the  risk  of  incurring  further  losses  by  greater 
discriminations. 

14.  That  the  differences  in  the  classifications  in  use  in  various 
parts  of  the  country,  and  sometimes  for  shipments  over  the  same 
roads  in  different  directions,  are  a  fruitful  source  of  misunder- 
standings, and  are  often  made  a  means  of  extortion. 

15.  That  a  privileged  class  is  created  by  the  granting  of  passes.   Free  passes, 
and  that  the  cost  of  the  passenger  service  is  largely  increased  by 

the  extent  of  this  abuse. 

16.  That  the  capitalization  and  bonded  indebtedness  of  the   Over- 
roads  largely  exceed  the  actual  cost  of  their  construction  or  their   ^jq^ 
present  value,  and  that  unreasonable  rates  are  charged  in  the 
effort  to  pay  dividends  on  watered  stock  and  interest  on  bonds 
improperly  issued. 

17.  That  railroad  corporations  have .  improperly  engaged  in 
lines  of  business  entirely  distinct  from  that  of  transportation,  and 
that  undue  advantages  have  been  afforded  to  business  enterprises 
in  which  railroad  officials  were  interested. 

18.  That  the  management  of  the  railroad  business  is  extrava- 
gant and  wasteful,  and  that  a  needless  tax  is  imposed  upon  the 


356  American   Government  and   Politics 

shipping  and  traveling  public  by  the  unnecessary  expenditure  of 
large  sums  in  the  maintenance  of  a  costly  force  of  agents  engaged 
in  a  reckless  strife  for  competitive  business. 

147.    The  Interstate  Commerce  Commission  at  Work 

The  Interstate  Commerce  Act  of  1887,  as  amended  by  later 
statutes,  provides  for  a  commission  of  seven  members,  appointed 
by  the  President  and  Senate,  and  empowered,  on  complaint  and 
after  hearing,  to  determine  and  prescribe  reasonable  rates,  regula- 
tions, and  practices,  to  order  reparation  to  injured  shippers,  and 
to  require  any  carriers  to  desist  from  unjust  discrimination  or 
undue  or  unreasonable  preferences.  The  way  in  which  the  com- 
mission may  grant  relief  to  shippers  is  well  illustrated  by  the  report 
of  the  action  in  the  following  case :  — 

W.  O.  Mitchell  v.  Atchison,  Topeka  &  Santa  Fe  Railway  Company; 
Chicago,  Rock  Island  &  Pacific  Railway  Company;  St.  Louis 
&  San  Francisco  Railroad  Company;  and  Missouri,  Kansas 
&  Texas  Railway  Company.  Submitted  June  4,  1907.  De- 
cided July  8,  1907.  Report  and  Order  of  the  Commission. 
Prouty,  Commissioner: 

The  complainant  is  a  resident  of  Oklahoma  City  and  a  shipper 
of  wheat,  who  complains  that  the  rates  charged  by  the  defendants 
for  the  transportation  of  that  commodity  from  Oklahoma  City  to 
Gainesville,  Tex.,  and  Forth  Worth,  Tex.,  are  excessive.  The 
Atchison,  Topeka  and  Santa  Fe  Ry.  Co.  and  its  connection,  the 
Gulf,  Colorado  &  Santa  Fe  Ry.  Co.,  carry  this  traffic  from  Ok- 
lahoma City  to  Gainesville,  while  all  the  defendants  reach  Fort 
Worth.  The  short-line  distances  are  140  miles  to  Gainesville 
and  202  miles  to  Fort  Worth,  and  the  rate  in  both  cases  was  at 
the  date  of  the  hearing  28^  cents  per  100  pounds.  .  .  . 

The  rate  on  wheat  for  200  miles  is  15  cents  in  Texas,  13  cents  in 
Kansas,  18  cents  in  Nebraska,  10.8  cents  in  Iowa,  17.5  cents  in 
Minnesota.  In  our  opinion,  under  all  the  circumstances,  the 
rate  from  Oklahoma  City  to  Fort  Worth  ought  not  to  exceed  22 
cents  per  100  pounds,  and  to  Gainesville  20  cents  per  100  pounds. 


The  Regulation  of  Commerce  357 

These  rates  are  extremely  high  and  the  difference  between  Fort 
Worth  and  Gainesville  rather  small  considering  the  distance  by 
which  they  are  separated;  but,  as  already  said,  consideration 
must  be  given  to  the  fact  that  it  is  impossible  to  pass  abruptly 
from  the  group  system. 

It  should  be  further  observed  that  these  rates  are  intended 
to  apply  only  to  local  consumption  at  Fort  Worth  and  Gainesville. 
No  milling-in-transit  or  other  transit  privilege  should  be  allowed. 
If  the  grain  is  shipped  beyond  these  points,  either  as  wheat  or  flour, 
it  should  be  upon  the  local  rates  out. 

An  order  in  accordance  with  the  above  views  will  be  issued. 

Order 

Upon  the  foregoing  report  —  The 

It  is  ordered,  That  the  defendants,  Atchison,  Topeka  &  Santa  companies 

'  '         '  ordered  to 

Fe  Railway  Company;  Chicago,  Rock  Island  &  Pacific  Railway  desist. 
Company;  St.  Louis  &  San  Francisco  Railroad  Company,  and 
Missouri,  Kansas  and  Texas  Railway  Company,  be,  and  they  are 
hereby,  notified  and  required  to  cease  and  desist,  on  or  before  the 
ist  day  of  September,  1907,  from  charging,  demanding,  collecting 
or  receiving  for  the  transportation  of  wheat  in  carloads  from  Okla- 
homa City,  in  the  Territory  of  Oklahoma,  to  Gainesville  in  the 
State  of  Texas,  their  present  rate  of  28^  cents  per  100  pounds. 

It  is  further  ordered,  That  said  defendants  be,  and  they  are  The  new 
hereby,  notified  and  required  to  establish  and  put  in  force  on  or 
before  said  ist  day  of  September,  a  rate  of  not  more  than  20  cents 
per  100  pounds  and  apply  that  rate  to  the  transportation  of  wheat 
in  carloads  over  their  respective  lines  of  railway  from  said  Okla- 
homa City  to  said  Gainesville,  during  a  period  of  at  least  two  years 
from  and  after  said  ist  day  of  September. 

It  is  further  ordered,  That  said  defendants  be  and  they  are  hereby, 
notified  and  required  to  cease  and  desist,  on  or  before  the  ist  day 
of  September,  1907,  from  charging,  demanding,  collecting  or 
receiving,  for  the  transportation  of  wheat,  in  carloads,  from  said 


rate  fixed. 


358.  American  Government  and   Politics 

Oklahoma  City  to  Fort  Worth,  in  the  State  of  Texas,  their 
present  rate  of  28^-  cents  per  100  pounds. 

//  is  further  ordered,  That  said  defendants  be  and  they  are  hereby, 
notified  and  required  to  establish  and  put  in  force,  on  or  before  said 
ist  day  of  September,  a  rate  of  not  more  than  22  cents  per  100 
pounds  and  apply  that  rate  to  the  transportation  of  wheat,  in  car- 
loads, over  their  respective  hues  of  railway,  from  said  Oklahoma 
City  to  said  Fort  Worth,  during  a  period  of  at  least  two  years  from 
and  after  the  said  ist  day  of  September. 

And  it  is  further  ordered,  That  said  defendants  be  and  they  are 
hereby,  authorized  to  make  said  20-cent  rate  and  said  22-cent  rate 
effective  upon  three  days'  notice  to  the  public  and  the  Interstate 
Commerce  Commission,  given  in  the  manner  required  by  law. 
The  tariff  containing  such  rates  should  bear  the  notation  that  it  is 
issued  under  the  authority  hereby  granted. 

148.    The  Anti-Trust  Act  of  i8go 

Under  its  general  power  to  regulate  interstate  commerce,  Con- 
gress has  passed  many  laws,  such  as  the  Safety  Appliance  Act,  the 
Arl'itration  Act,  the  Pure  Food  Law,  and  the  Employers'  Liability 
Law,  but  the  most  famous  of  them  all  is  the  Anti-trust  Law  of 
1890,  the  important  clauses  of  which  are  given  here :  — 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled, 

Sec,  I.  Every  contract,  combination  in  the  form  of  trust  or 
otherwise,  or  conspiracy,  in  restraint  of  trade  or  commerce  among 
the  several  States,  or  with  foreign  nations,  is  hereby  declared  to  be 
illegal.  Every  person  who  shall  make  any  such  contract  or  en- 
gage in  any  such  combination  or  conspiracy,  shall  be  deemed 
guilty  of  a  misdemeanor,  and,  on  conviction  thereof,  shall  be 
punished  by  fine  not  exceeding  five  thousand  dollars,  or  by  im- 
prisonment not  exceeding  one  year,  or  by  both  said  punishments, 
in  the  discretion  of  the  court. 

Sec.  2.  Every  person  who  shall  monopolize,  or  attempt  to 
monopolize,  or  combine  or  conspire  with  any  person  or  persons,  to 


The  Regulation  of  Commerce  359 

monopolize  any  part  of  the  trade  or  commerce  among  the  several 
States,  or  with  foreign  nations,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and,  on  conviction  thereof,  shall  be  punished  by  fine 
not  exceeding  five  thousand  dollars,  or  by  imprisonment  not  ex- 
ceeding one  year,  or  by  both  said  punishments,  in  the  discretion  of 
the  court. 

Sec.  3.  Every  contract,  combination  in  form  of  trust  or  other- 
wise, or  conspiracy,  in  restraint  of  trade  or  commerce  in  any  Terri- 
tory of  the  United  States  or  the  District  of  Columbia,  or  in 
restraint  of  trade  or  commerce  between  any  such  Territory  and 
another,  or  between  any  such  Territory  or  Territories  and  any 
State  or  States  or  the  District  of  Columbia,  or  with  foreign  nations, 
or  between  the  District  of  Columbia  and  any  State  or  States  or 
foreign  nations,  is  hereby  declared  illegal.  Every  person  who  shall 
make  any  such  contract  or  engage  in  any  such  combination  or  con- 
spiracy, shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  con- 
viction thereof,  shall  be  punished  by  fine  not  exceeding  five  thou- 
sand dollars,  or  by  imprisonment  not  exceeding  one  year,  or  by  both 
said  punishments,  in  the  discretion  of  the  court. 

Sec.  4.  The  several  Circuit  Courts  of  the  United  States  are 
hereby  invested  with  jurisdiction  to  prevent  and  restrain  violations 
of  this  act.  .  .  . 

Sec.  6.  Any  property  owned  under  any  contract  or  by  any  com- 
bination, or  pursuant  to  any  conspiracy  (and  being  the  subject 
thereof)  mentioned  in  section  one  of  this  act,  and  being  in  the  course 
of  transportation  from  one  State  to  another,  or  to  a  foreign  country, 
shall  be  forfeited  to  the  United  States,  and  may  be  seized  and  con- 
demned by  like  proceedings  as  those  provided  by  law  for  the  for- 
feiture, seizure  and  condemnation  of  property  imported  into  the 
United  States  contrary  to  law. 

Sec.  7.  Any  person  who  shall  be  injured  in  his  business  or  prop- 
erty by  any  other  person  or  corporation  by  reason  of  anything  for- 
bidden or  declared  to  be  unlawful  by  this  act,  may  sue  therefor  in 
any  Circuit  Court  of  the  United  States  in  the  district  in 
which  the  defendant  resides  or  is  found,  without  respect  to  the 


360  American  Government  and   Politics 

amount  in  controversy,  and  shall  recover  threefold  the  damages 
by  him  sustained,  and  the  costs  of  suit,  including  a  reasonable 
attorney's  fee. 

Sec.  8.  That  the  word  "person,"  or  "persons,"  whenever  used 
in  this  act  shall  be  deemed  to  include  corporations  and  associations 
existing  under  or  authorized  by  the  laws  of  either  the  United  States, 
the  laws  of  any  of  the  Territories,  the  laws  of  any  State,  or  the  laws 
of  any  foreign  country. 

Approved,  July  2,  1890. 


CHAPTER  XX 

NATIONAL   RESOURCES 

149.    The  Governors'  Conference,  igo8 

During  the  past  century,  the  federal  government  granted  away 
to  private  persons  milUons  of  acres  of  forest,  mineral,  and  arable 
lands  for  the  purpose  of  securing  the  settlement  of  the  great  West 
and  stimulating  the  development  of  industries  and  transportation 
facilities.  The  unexpected  rapidity,  however,  with  which  our 
industries  have  drawn  upon  our  natural  resources  has  brought  us 
within  recent  years  to  a  keen  realization  of  the  fact  that  this  lavish 
recklessness  cannot  go  on  indefinitely.  Wide  publicity  was  given 
to  the  problem  of  conserving  our  resources  by  the  action  of  Presi- 
dent Roosevelt  in  calling  a  conference  of  the  governors  of  all  the 
states  to  take  the  question  into  serious  consideration.  The  con- 
ference met  at  Washington  in  May,  1908,  and  after  a  few  days' 
deliberation  issued  the  following  declaration  of  principles :  — 

We,  the  Governors  of  the  States  and  Territories  of  the  United  Material 

resources  the 

States  of  America,  in  conference  assembled,  do  hereby  declare  the   foundation 
conviction  that  the  great  prosperity  of  the  country  rests  upon  the   of  our 
abundant  resources  of  the  land  chosen  by  our  forefathers  for  their  P     P    ^* 
homes  and  where  they  laid  the  foundation  of  this  great  nation. 

We  look  upon  these  resources  as  a  heritage  to  be  made  use  of  in 
establishing  and  promoting  the  comfort,  prosperity  and  happiness 
of  the  American  people,  but  not  to  be  wasted,  deteriorated  or 
needlessly  destroyed. 

We  agree  that  our  country's  future  is  involved  in  this :  that  the 
great  natural  resources  supply  the  material  basis  upon  which  our 
civilization  must  continue  to  depend  and  upon  which  the  perpetu- 
ity of  the  nation  itself  rests. 

We  agree,  in  the  light  of  facts  brought  to  our  knowledge  and 

361 


362 


American   Government  and   Politics 


Resources 
threatened 
with  ex- 
haustion. 


What  are 
our 
resources  ? 


What 
should  be 
done. 


from  information  received  from  sources  which  we  cannot  doubt, 
that  this  material  basis  is  threatened  with  exhaustion.  Even  as 
each  succeeding  generation  from  the  birth  of  the  nation  has  per- 
formed its  part  in  promoting  the  progress  and  development  of  the 
republic,  so  do  we  in  this  generation  recognize  it  as  a  high  duty  to 
perform  our  part,  and  this  duty  in  large  degree  lies  in  the  adoption 
of  measures  for  the  conservation  of  the  natural  wealth  of  the  coun- 
try. 

We  declare  our  firm  conviction  that  this  conservation  of  our 
natural  resources  is  a  subject  of  transcendent  importance  which 
should  engage  unremittingly  the  attention  of  the  nation,  the  States 
and  the  people  in  earnest  co-operation.  These  natural  resources 
include  the  land  on  which  we  hve  and  which  yields  our  food;  the 
waters,  which  fertihze  the  soil,  supply  power  and  form  great  ave- 
nues of  commerce ;  the  forests,  which  yield  the  materials  for  our 
homes,  prevent  erosion  of  the  soil  and  conserve  the  navigation 
and  other  uses  of  our  streams,  and  the  minerals,  which  form  the 
basis  of  our  industrial  Hfe  and  supply  us  with  heat,  light  and 
power. 

We  agree  that  the  land  should  be  so  used  that  erosion  and  soil 
wash  should  cease,  that  there  should  be  reclamation  of  arid  and 
semi-arid  regions  by  means  of  irrigation  and  of  swamp  and  over- 
flowed regions  by  means  of  drainage ;  that  the  waters  should  be  so 
conserved  and  used  as  to  promote  navigation,  to  enable  the  arid 
regions  to  be  reclaimed  by  irrigation,  and  to  develop  power  in  the 
interests  of  the  people ;  that  the  forests,  which  regulate  our  rivers, 
support  our  industries  and  promote  the  fertihty  and  productiveness 
of  the  soil,  should  be  preserved  and  perpetuated ;  that  the  minerals 
found  so  abundantly  beneath  the  surface,  should  be  so  used  as  to 
prolong  their  utihty,  that  the  beauty,  healthfulness  and  habitability 
of  our  country  should  be  preserved  and  increased ;  that  the  sources 
of  national  wealth  exist  for  the  benefit  of  all  the  people  and  that  the 
monopoly  thereof  should  not  be  tolerated. 

We  commend  the  wise  forethought  of  the  President  in  sounding 
the  note  of  warning  as  to  the  waste  and  exhaustion  of  the  natural 


National    Resources  ^^^ 

resources  of  the  country  and  signify  our  high  appreciation  of  his   Federal  and 
action  in  caUing  this  Conference  to  consider  the  same  and  to  seek   m'ents^should 
remedies  therefor  through  co-operation  of  the  Nation  and  the   cooperate. 
States.     We  agree  that  this  co-operation  should  find  expression  in 
suitable  action  by  the  Congress  within  the  limits  of  and  coextensive 
with  the  national  jurisdiction  of  the  subject  and,  complementary 
thereto,  by  the  Legislatures  of  the  several  States  within  the  limits  of 
and  coextensive  with  their  jurisdiction. 

We  declare  the  conviction  that  in  the  use  of  the  natural  resources 
our  independent  States  are  interdependent  and  bound  together  by 
ties  of  mutual  benefits,  responsibilities  and  duties. 

We  agree  in  the  wisdom  of  future  conferences  between  the   Future 

corif  crcQccs 

President,  members  of  Congress  and  the  Governors  of  the  States 
on  the  conservation  of  our  natural  resources  with  a  view  to  continued 
co-operation  and  action  on  the  lines  suggested.  And  to  this  end  we 
advise  that  from  time  to  time,  as  in  his  judgment  may  seem  wise, 
the  President  call  the  Governors  of  the  States,  members  of 
Congress  and  others  into  conference. 

We  agree  that  further  action  is  advisable  to  ascertain  the  present   A  survey  of 
condition  of  our  natural  resources  and  to  promote  the  conservation   resources 
of  the  same.     And  to  that  end  we  recommend  the  appointment  by 
each  State  of  a  commission  on  the  conservation  of  natural  resources 
to  co-operate  with  each  other  and  with  any  similar  commission  on 
behalf  of  the  Federal  Government. 

We  urge  the  continuation  and  extension  of  forest  policies  adapted  Forest  ron- 
to  secure  the  husbanding  and  renewal  of  our  diminishing  timber 
supply,  prevention  of  soil  erosion,  the  protection  of  headwaters  and 
the  maintenance  of  the  purity  and  navigability  of  our  streams. 
We  recognize  that  the  jjrivate  ownership  of  forest  lands  entails 
responsibilities  in  the  interests  of  all  the  people,  and  we  favor  the 
enactment  of  laws  looking  to  the  protection  and  replacement  of 
privately  owned  forests. 

We  recognize  in  our  waters  a  most  valual)le  asset  of  the  })e()ple   Irrigation. 
of  the  United  States  and  we  recommend  the  enactment  of  laws 
looking  to  the  conservation  of  water  resources  for  irrigation,  water 


3^4 


American   Government  and   Politics 


supply,  power  and  navigation,  to  the  end  that  navigable  and  source 
streams  may  be  brought  under  complete  control  and  fully  utilized 
for  every  purpose.  We  especially  urge  on  the  Federal  Congress  the 
immediate  adoption  of  a  wise,  active  and  thorough  waterway 
policy,  providing  for  the  prompt  improvement  of  our  streams  and 
conservation  of  their  watersheds  required  for  the  uses  of  commerce 
and  the  protection  of  the  interests  of  our  people. 

We  recommend  the  enactment  of  laws  looking  to  the  prevention 
of  waste  in  the  mining  and  extraction  of  coal,  oil,  gas  and  other 
minerals,  with  a  view  to  their  wise  conservation  for  the  use  of  the 
people  and  to  the  protection  of  human  life  in  the  mines. 

Let  us  conserve  the  foundations  of  our  prosperity. 


Consump- 
tion of 
timber. 


The  forests 
will  pay. 


150.    Why  Forest  Reservations  Should  Be  Made 

In  1906,  the  Senate  committee  in  charge  of  the  bill  providing  for 
the  purchase  of  vast  areas  in  the  Appalachian  and  White  moun- 
tains for  forest  reservations  made  this  argument  in  support  of  the 
policy  they  were  advocating :  — 

First.  The  creation  of  these  reserves  is  a  wise  public  policy. 
Between  the  census  of  the  years  1850  and  igoo,  the  population  of 
the  country  increased  from  23,000,000  to  76,000,000,  or  330  per 
cent.,  but  the  money  value  of  the  lumber  product  which  it  consumed 
increased  from  $60,000,000  to  $566,000,000  or  940  per  cent.  Both 
the  per  capita  consumption  of  timber  and  the  price  of  timber  are 
increasing.  It  is  estimated  that  24  per  cent,  of  the  Southern 
Appalachian  region  has  been  deforested.  Deforestation  means  loss 
of  power  to  produce  future  forests.  It  is  in  the  public  interest 
that  these  lands  should  be  acquired  and  held  by  the  Government  as 
permanent  sources  of  timber  supply. 

Second.  The  acquisition  of  these  lands  by  the  Government  will 
be  good  business  policy.  The  use  of  the  western  reserves  is  just 
beginning,  but  the  Government  receipts  from  these  reserves  are 
approximating  one-half  the  outgo.  Within  a  short  term  of  years, 
they  will  undoubtedly  carry  themselves.     At  the  same  time  their 


National   Resources  365 

property  value  is  rising  and  will  continue  to  rise,  both  from  the 
increasing  value  of  the  timber  and  from  the  greater  productiveness 
of  the  forests  under  management.  With  a  present  value  of  not  less 
than  $250,000,000,  these  western  reserves  are  being  administered 
at  an  annual  cost  of  one  third  of  one  per  cent  of  this  sum  while 
they  are  increasing  in  value  fully  10  per  cent  a  year.  This  is  in 
addition  to  their  enormous  indirect  returns  to  the  public  welfare 
from  their  indispensable  relation  to  successful  irrigation,  to  min- 
ing and  other  industries  which  demand  lumber,  to  settlers,  and 
to  stock  grazing. 

Third.     The  creation  of  these  reserves  is,  now  or  later,  a  neces-   Effect  of 
sary  policy.     Sooner  or  later  the  certain  consequences  of  forest   tion'on^^' 
destruction  which  is  now  taking  place  will  force  the  national   navigatioa 
government  to  step  in.     The  question  is  not  merely  that  of  prevent- 
ing the  impoverishment  of  the  immediate  localities  and  the  con- 
version of  productive  land  into  a  waste  of  barren  rock.     The  loss  of 
the  forest  is  followed  by  the  loss  of  the  soil  and  by  recurring  floods. 
The  headwaters  of  every  important  river  south  of  the  Ohio  and  the 
Potomac  and  east  of  the  Mississippi  including  the  tributaries  of 
these  streams,  rise  in  the  southern  Appalachians,  while  the  White 
Mountains  feed  important  rivers  of  every  New  England  state 
except  Rhode  Island.     The  rainfall  of  both  regions  is  heavy  and 
distributed  throughout  the  year. 

After  denudation,  every  rain  turns  the  shrunken  streams  into  Floods  and 
mountain  torrents  which  devastate  property  and  bear  down  vast 
quantities  of  silt  to  obstruct  navigable  rivers.  The  sand  bars  thus 
formed  accentuate  the  effect  of  alternating  high  and  low  water 
periods,  and  large  government  expenditures  for  dredging  and 
harbor  improvements  are  entailed.  The  clearing  of  river  channels 
and  harbors  in  North  Carolina,  South  Carolina,  Georgia  and 
Alabama  is  now  being  urged.  Yet  deforestation  is  only  in  its  first 
stage.  Eventually  in  this  country,  as  has  been  the  case  in  France, 
the  stripped  mountains  will  become  so  inimical  to  the  public  good 
that  the  Government  will  have  to  take  charge  of  them  and  reforest 
them.     But  the  expense  of  this,  when  once  the  forests  are  gone, 


266 


American   Government  and   Politics 


will  be  only  less  ruinous  than  the  damage  which  it  will  check,  and 
the  remedy  will  require  many  years  to  become  operative. 

The  question  of  establishing  these  reserves  is  not  a  local  or  a 
state  question,  but  a  national  question.  The  interests  affected  are 
interstate.  The  evils  which  the  reserves  will  check  fall  most  heavily 
on  distant  communities,  and  even  upon  the  National  Government. 
Here  again,  if  we  are  wise,  we  shall  draw  a  lesson  from  French 
experience.  In  France,  the  first  efforts  to  repair  the  disastrous 
effects  of  torrents  were  made  by  engineers  along  the  low  water 
courses.  Dredging  and  dams,  however,  proved  at  best  but 
temporarily  effective.  Only  when  they  began  to  push  their  work  up 
to  the  headwaters  of  the  streams  did  they  find  themselves  on  the 
right  road.  The  Government  now  puts  into  the  building  of  levees 
and  the  improvement  of  navigation  in  rivers  and  harbors  many 
millions  of  dollars  annually.  The  reserves  constitute  a  far  more 
economical  expenditure  for  the  same  purpose  in  addition  to  their 
large  contributions  to  public  welfare. 

It  is  not  right  to  expect  the  state  within  which  these  areas  lie  to 
reserve  them  for  the  benefit  of  other  states.  It  is  impossible  for 
states  which  suffer  from  conditions  outside  their  own  territory  to 
remedy  them  by  their  own  action.  There  has  been  set  aside  in  the 
West,  for  essentially  the  same  purposes  which  these  reserves  will 
secure,  a  vast  area  of  reserves  created  from  the  national  domain  and 
benefiting  primarily  the  people  of  the  West.  But  the  interests 
involved  both  in  the  West  and  in  the  East  are  too  broad  to  be 
regarded  as  even  sectional  merely.  The  benefits  of  the  proposed 
reserves  will  be  national  benefits  and  their  expenses  should  be 
borne  by  the  nation. 


151.    The  National  Forest  Reserves 

Mr.  Gifford  Pinchot,  whose  eminent  services  as  chief  'of  the 
Forest  Service  have  won  for  him  national  recognition,  briefiy 
describes  in  this  interesting  article  published  in  The  Independent 
the  extent  and  character  of  the  national  forest  domain. 


National   Resources  367 

The  United  States  now  holds  in  National  Forests  (formerly  The  extent 
called  forest  reserves)  about  165,000,000  acres  of  land.  This  is  a  forests 
vast  area  —  greater  than  all  of  France,  and  more  than  double  that 
of  the  British  Isles.  It  is,  however,  but  7  per  cent,  of  the  total  area 
of  the  United  States.  As  a  permanent  source  of  wood  supply  it  is 
altogether  inadequate,  by  itself,  even  for  our  present  needs. 
Though  most  of  the  forest  upon  it  is  still  virgin,  the  timber  now 
standing  would  hold  out  against  a  rate  of  consumption  equal  to 
that  of  1906  (the  last  year  for  which  the  figures  have  as  yet  been 
compiled)  for  not  more  than  four  or  five  years.  Yet  at  the  average 
price  which  the  Forest  Service  is  now  getting  for  timber  from 
the  National  Forests  this  timber  would  bring,  just  as  it  stands 
in  the  woods,  nearly  enough  to  pay  the  national  debt. 

European  publicists  have  held  that  from  one-fifth  to  one-third  of  How  much 
a  country  should  be  in  woodland.  No  such  sweeping  rule  can,  of  woodland? 
course,  be  applied  exactly;  all  the  economic  conditions  must  be 
taken  into  account.  A  country  of  high  fertility  and  dense  popula- 
tion, like  Belgium  or  Holland,  will  do  best  to  draw  most  of  its  wood 
supplies  from  abroad.  The  United  States,  however,  must  expect 
always  to  grow  most  of  its  timber  supply  at  home.  Indeed,  as  the 
world-shortage  of  timber,  which  is  certainly  approaching,  becomes 
acute,  we  must  expect  the  competition  of  foreign  markets  for  the 
products  of  our  own  forests.  It  is  commonly  supposed  that  we 
shall  be  able  to  fall  back  on  Canada,  but  Canada  can  give  us 
nothing  more  than  temporary  relief.  The  Canadian  forests  hold 
far  less  merchantable  timber  than  has  been  supposed;  growing  in 
the  North  they  grow  slowly;  and  their  output  will,  as  the  country 
develops,  be  in  increasing  demand  for  home  use,  to  say  nothing  of 
the  needs  of  England  and  of  the  Pacific  trade.  Rightly  used,  the 
land  in  the  United  States,  better  suited  to  growing  forests  than  to 
any  other  purpose,  should  fully  supi)ly  our  needs;  but  it  is  impor- 
tant to  remember  that  more  than  three-quarters  of  this  land  is  in 
private  hands,  and  not  in  the  National  Forests. 

Even  within  the  National  Forests  not  all  of  the  land  belongs  to 
the  Government;    and  of  that  which  does,  not  all  is  timbered. 


368 


American   Government  and   Politics 


These  forests  were  set  aside  from  those  parts  of  the  public  lands 
wholly  or  partly  covered  with  timber  or  undergrowth,  whether  of 
commercial  value  or  not,  provided  that  they  were  not  more  valuable 
for  mining  or  agriculture  than  for  forest  purposes.  They  cover, 
therefore,  generally  speaking,  the  more  mountainous  parts  of  the 
West,  where  there  is  rainfall  enough  to  permit  trees  to  grow,  but 
where  the  land  is  too  rough  or  too  high  for  farming.  Before  they 
were  set  aside  as  forests  they  were  open  to  entry  under  the  public 
land  laws  of  the  United  States,  and  most  of  them  were  sprinkled 
with  land  claims  and  patented  lands.  Many  of  them  also  were 
traversed  by  railroads  which  held  land  grants  from  the  Govern- 
ment. Even  after  they  became  National  Forests  they  remained 
subject  to  mineral  entry,  just  like  any  other  part  of  the  public 
domain.  Hence  the  National  Forests  are  broken  by  interior 
holdings  which,  in  a  few  places,  amount  to  as  much  as  one-third 
the  total  area.  Just  how  much  deduction  should  be  made  for 
these  claims  and  perfected  titles  in  all  the  National  Forests  is  not 
yet  known  exactly,  but  it  is  probably  as  much  as  15  per  cent. 

Again,  the  forests  include  a  good  deal  of  land  which  does  not 
now  grow  trees.  Some  of  it  never  will.  This  is  the  land  which 
lies  above  timber  line,  and  might  just  as  well  be  left  out  of  the 
forests  if  it  were  not  invariably  surrounded  by  National  Forest 
lands,  and  if  it  had  any  value  for  any  other  purpose.  There  is  also 
the  land  from  which  the  forest  has  been  burned  away,  but  to  which 
it  will  be  restored  again  in  time  —  a  much  larger  amount  than  the 
naturally  barren  land.  Further,  in  certain  parts  of  New  Mexico, 
Arizona,  and  southern  California,  much  land  has  been  put  into 
national  forests  which  is  merely  brushland,  but  on  which  the  pro- 
tection of  even  this  inferior  growth  is  absolutely  essential  to  the 
water  supply.  .  .  . 


152.    The  Reservation  of  Mineral  Lands 

In  his  effort  to  conserv^e  public  mineral  lands,  President  Roose- 
velt, in  a  message  of  February  3,  1907,  made  the  following  recom- 
mendations to  Congress :  — 


National   Resources  369 

I  recommended  [in  a  previous  message]  to  Congress  the  enact-  The 
ment  of  such  legislation  as  would  provide  for  title  to  and  develop-   [jtig^ "^f    i 
ment  of  the  surface  land  as  separate  and  distinct  from  the  right  to   resources, 
the  underlying  mineral  fuels  in  regions  where  these  may  occur, 
and  the  disposal  of  these  mineral  fuels  under  a  leasing  system  on 
conditions  which  would  inure  to  the  benefit  of  the  public  as  a  whole. 
I  again  call  the  attention  of  Congress  to  the  importance  of  enacting 
such  legislation.     I  care  little  for  the  details ;  the  prime  need  is  that 
the  system  should  be  established,  that  from  henceforth  the  nation 
should  retain  its  title  to  its  fuel  resources,  and  its  right  to  supervise 
their  development  in  the  interest  of  the  public  as  a  whole. 

Such  a  leasing  system  as  that  proposed  represents  by  no  means  Foreign 
an  untried  policy.  In  the  Australian  countries  during  the  last  withkTsing 
fifteen  years  coal  has  been  mined  under  a  system  of  government 
leases,  and  on  conditions  so  favorable  for  development  that  their 
coal  and  coke  are  to-day  being  sold  on  the  Pacific  Coast  of  both  the 
American  continents.  In  all  the  great  coal  producing  European 
countries,  except  Great  Britain,  coal  is  being  mined  under  govern- 
ment leases.  In  Great  Britain,  leases  are  granted  almost  entirely 
by  the  private  land  owners,  but  there  as  in  other  countries,  the 
surface  culture  and  the  mining  operations  are  conducted  indepen- 
dently of  each  other.  In  Nova  Scotia,  British  Columbia,  India, 
and  other  British  colonies  a  government  leasing  system  has  been 
adopted,  and  is  working  satisfactorily.  .  .   . 

Mineral  fuels,  like  the  forests  and  navigable  streams,* should  be  Minerals 
treated  as  pubhc  utilities.  This  is  generally  recognized  abroad.  utiHties."^ 
In  some  foreign  countries,  practical  control  of  a  large  portion  of  the 
fuel  resources  was  allowed  years  ago  to  pass  into  private  hands; 
but  the  existing  governments  are  endeavoring  to  regain  this  control 
in  order  that  the  diminishing  fuel  supply  may  be  safeguarded  for  the 
common  good,  instead  of  being  disposed  of  for  the  benefit  of  a  few 
—  though  the  mistake  of  the  preceding  generation  in  disposing  of 
these  fuels  for  a  nominal  return,  cannot  always  be  corrected  by 
the  present  generation  as  the  cost  may  be  so  enormous  as  to  be  pro- 
hibitory. 


370 


American   Government  and  Politics 


In  our  own  Western  States  and  Territories,  the  scarcity  of  both 
the  water  and  forests  has  rendered  necessary  their  preservation  as 
pubhc  utiHties ;  and  the  preservation  of  the  forests  for  the  purpose 
of  conserving  both  the  water  and  the  timber  supply  has  come  to  be 
recognized  as  the  wise  and  proper  pohcy  of  the  Federal  Govern- 
ment. The  quantity  of  high  grade  mineral  fuels  in  the  West  is 
relatively  much  smaller  than  that  of  the  forests;  and  the  proper 
conservation  of  these  fuels  is  a  matter  of  far-reaching  importance. 
This  government  should  not  now  repeat  the  mistakes  of  the  past. 
Let  us  not  do  what  the  next  generation  cannot  undo.  We  have  a 
right  to  a  proper  use  of  both  the  forests  and  the  fuel  during  our 
lifetime  but  we  should  not  dispose  of  the  birthright  of  our  children. 
If  this  government  sells  its  remaining  fuel  lands,  they  pass  out  of 
its  future  control. 

If  it  now  leases  them  we  retain  control  and  a  future  Congress  will 
be  at  liberty  to  decide  whether  it  will  continue  or  change  this 
policy.  Meanwhile  the  government  can  inaugurate  a  system  which 
will  encourage  the  separate  and  independent  development  of  the 
surface  lands  for  agricultural  purposes  and  the  extraction  of  the 
mineral  fuels  in  such  manner  as  will  best  meet  the  needs  of  the 
people  and  best  facihtate  the  development  of  manufacturing 
industries.  ... 

Already  probably  one  half  of  the  total  area  of  the  high-grade 
coals  in  the  West  has  passed  under  private  control.  Including 
both  the  lignite  and  the  coal  areas,  these  private  holdings  probably 
aggregate  not  less  than  30,000,000  acres  of  coal  fields.  With  the 
remainder  of  the  lands  containing  mineral  fuels  reserved  at  least 
by  the  government,  there  will  be  ample  opportunity  to  determine 
in  the  near  future  which  of  the  two  systems  —  private  ownership 
or  the  leasing  system  with  general  government  supervision  —  will 
best  protect  the  interests  of  the  people  and  thus  promote  the 
permanent  development  of  the  West. 

The  necessity  for  care  in  the  future  management  of  these  fuel 
supplies  is  further  illustrated  by  the  rapid  rate  at  which  use  of  such 
fuels  is  increasing  in  the  United  States.     The  amount  of  coal  used 


National   Resources  371 

in  this  country  during  the  last  ten  years  is  practically  equal  to  that 
used  during  the  preceding  fifty  years  of  its  history.  During  each 
decade  of  this  period  the  coal  used  was  practically  equal  to  the  sum 
of  that  used  during  all  the  preceding  decades.  This  remarkable 
development  and  the  certain  continuity  of  this  prodigious  growth 
compels  us  to  recast  all  estimates  as  to  the  Hfe  of  our  "inexhaustible 
resources."  We  can  foresee  the  time  when  the  eastern  industries 
will  be  much  more  largely  taxed  for  supplying  foreign  markets. 
Then  the  West  will  also  be  largely  engaged  in  varying  manufactur- 
ing enterprises  and  this  will  require  the  intelligent  use  of  every  ton 
of  available  fuel  in  that  region.  The  grave  importance  of  conserv- 
ing the  fuel  supplies  in  the  West  still  remaining  under  the  control 
of  the  Government,  with  a  view  to  the  accomplishment  of  these 
important  purposes,  impels  me  again  to  bring  this  matter  to  the 
attention  of  Congress.  .  .  . 

153.    The  Reclamation  of  Arid  Lands 

Quite  as  important  as  the  conservation  of  our  national  resources 
is  the  development  of  the  great  arid  regions  which  are  to-day 
unproductive.  The  most  distinguished  advocate  of  a  generous 
policy  of  governmental  reclamation  has  been  Mr.  Newlands,  of 
Nevada,  and  in  championing  the  Reclamation  Law  of  1902,  he 
made  the  following  speech  in  the  House  of  Representatives  on 
May  14,  of  that  year. 

The  so-called  arid  region  extends  from  about  the  one  hundredth  The  extent 
meridian  of  longitude  to  the  Pacific  coast.  Draw  a  line  north  section, 
and  south  through  the  middle  of  the  two  Dakotas,  Nebraska, 
Kansas,  and  Oklahoma,  and  all  to  the  west  of  it  is  either  arid  or 
semi-arid,  the  aridity  increasing  as  the  Rocky  Mountains  are 
approached.  The  eastern  portion  of  this  great  region  is  semi- 
arid,  while  the  narrow  fringe  along  the  Pacific  seaboard  is  humid. 
Within  the  boundaries  named  thirteen  States  and  three  Territories 
lie  wholly  or  in  part,  and,  excluding  Alaska,  they  constitute  nearly 
one-half  of  the  superficial  area  of  the  Republic.  It  is  estimated 
that  they  contain  about  600,000,000  acres  of  vacant  j)ublic  land, 


372 


American   Government  and   Politics 


Small 

irrigation 

schemes. 


of  which  about  60,000,000  acres  may  be  irrigated  if  the  water 
supply  is  properly  conserved  and  distributed.  In  other  words, 
it  is  possible  in  the  future  to  actually  reclaim  for  cultivation  in 
this  vast  region  an  area  about  equal  to  the  area  of  the  two  States 
of  Illinois  and  Iowa.  The  rest  of  this  vast  area  cannot  be  culti- 
vated. It  will  consist  largely  of  mountain  ranges  and  arid  plains, 
for  which  it  will  be  impossible  to  obtain  sufficient  water  for  irri- 
gation, though  they  will  be  useful  for  grazing. 

This  region  was  once  called  "The  Great  American  Desert." 
It  is  mainly  mountainous.  The  Rocky  Mountains,  the  Sierra 
Nevada,  and  the  other  mountain  ranges  take  up  a  very  large  pro- 
portion of  its  area.  It  is  impossible  anywhere  to  cultivate  by 
means  of  rainfall.  Grasses  adapted  to  the  arid  region  grow  on 
these  plains  and  mountains  and  sustain  the  wandering  herds  from 
which  most  of  the  beef  cattle  of  the  country  are  recruited.  Only 
valleys  and  plateaus  in  their  vicinity  are  level  enough  for  cultiva- 
tion. The  mountainous  character  of  the  country  would  prevent 
cultivation  even  were  water  abundant ;  but  there  is  only  sufficient 
water  for  a  small  part  of  the  level  portion  of  this  area.  The  waters 
for  cultivation  must  come  from  the  creeks,  streams,  and  rivers 
which  have  their  sources  in  the  snows  of  the  mountains.  These 
waters  must  be  led  away  from  the  streams  by  lateral  canals  and 
ditches,  and  in  order  to  accomplish  this  the  water  must  be  taken 
out  where  damming  the  river  is  comparatively  easy.  The  snows 
which  are  the  source  of  these  creeks,  strearns,  and  rivers  fall  in  the 
winter  and  melt  in  the  spring  and  early  summer.  Most  of  these 
snows  melt  before  May,  leaving  a  scanty  supply  for  June,  July, 
and  August,  the  period  when  the  heat  is  intense,  and  when  the 
dry  air  sucks  the  moisture  out  of  everything,  and  when  moisture 
is  most  required  for  ripening  crops. 

The  first  lands  taken  up  in  such  a  region  are  along  the  creeks 
and  rivers  and  in  the  valleys  where  water  is  needed  for  supply. 
These  lands  being  overflowed  by  the  spring  freshets,  would  pro- 
duce wild  grasses,  which  the  stockmen  would  cut  for  hay,  thus 
tiding  over  severe  winters  when  the  snow  covered  and  concealed 


National   Resources  373 

the  wild  grasses  of  the  plains  and  imperilled  thehves  of  the  stock. 
Then,  growing  more  provident,  the  stockmen  would  divert  the 
flood  waters  by  canals  over  the  land  not  naturally  overflowed, 
and  thus  increase  the  hayfields.  Then  came  the  mines  with  their 
communities  of  merchants  and  miners  requiring  food  suppHes  of 
every  kind.  And  so  the  smaU  farmer  was  developed,  who,  by 
diverting  canals  and  ditches,  sought  to  give  his  land  the  needed 
water  for  cereals,  vegetables  and  fruits. 

From  these  conditions  has  come  the  present  irrigation  develop-    The 
ment  of  the  West.     The  condition  of  the  streams  in  the  period  of   "o^anje 
lowest  water  was  the  measure  of  possible  reclamation.     The  flood   scientific 
waters  were  of  no  use,  for  they  were  not  available  when  needed  for  ^^^^'"'^"^• 
ripening  the  crops,  and  it  is  these  flood  waters,  which  finally  make 
their  way  to  the  ocean  or  to  great  lakes  in  the  sink  of  the  desert, 
like  Salt  Lake,  Humboldt  Lake,  Walker  Lake,  and  others,  that  it 
is  proposed  to  make  available  for  the  arid  lands  now  remaining 
unsettled.     To  accomplish  this  requires  the  broadest  generaliza- 
tion, the  study  of  an  entire  river,  with  all  its  tributaries  and  their 
subtributaries ;    the  maintenance  of  an  equal  and  sustained  flow 
of  the  river  during  the  planting  and  growing  season,  and  the  utiliza- 
tion of  every  device  upon  every  part  of  the  river  necessary  to  pre- 
serve this  equal  flow.     The  lands  to  be  benefited  may  be  hundreds 
of  miles  away  from  the  location  of  the  stored  waters,  but  these 
stored  waters  being  above  them,  not  below  them,  will  be  on  tap, 
responsive  to  the  demands  of  intelligent  husbandry.  .  .  . 

The  idea  is  that  the  Government  should  do  the  primary  work  of  The  problem 
constructing  the  reservoirs  and  larger  canals,  so  that  the  water  °  -u^^^"    f' 
may  be  brought  within  the  reach  of  those  who  are  to  settle  on  the   water, 
public  lands  and  use  it  in  their  reclamation  and  cultivation.     Stor- 
age enables  the  utilization  of  a  greater  amount  of  the  torrential 
waters  in  irrigating  the  arid  plains,  as  the  stored  waters  supplement 
the  torrential  waters  later  on  and  ripen  the  crops  which  would 
otherwise  be  burnt  by  the  hot  sun.     Storage  involves  the  treatment 
of  an  entire  watershed  in  a  scientific  way  regardless  of  State  lines. 
The  problem  is  to  maintain  an  equal  and  sustained  flow  of  the 


374  American   Government  and   Politics 

streams,  so  that  the  torrential  waters  may  be  kept  from  flowing  to 
waste  and  may  be  conserved  and  let  into  the  stream  when  the 
natural  supply  is  exceedingly  hmited.  Very  large  rivers  have  nu- 
merous tributaries,  with  their  sources  in  the  snows  of  the  mountains. 
The  more  water  there  is  stored  the  greater  the  extent  of  the  tor- 
rential waters  that  can  be  utilized  in  irrigation,  for  storage  guaran- 
tees the  service  of  water  when  it  is  most  needed,  and  settlers  can 
safely  take  out  the  torrential  waters  in  the  spring  and  bring  larger 
areas  of  land  under  cultivation  when  they  feel  assured  that  the 
stored  waters  will  come  on  later  in  a  period  of  drought,  and  furnish 
the  crops  with  the  needed  moisture. 


CHAPTER  XXI 

THE   GOVERNMENT   OF   TERRITORIES 

The  federal  Constitution  contains  no  clause  expressly  author- 
izing the  acquisition  of  territory  and  is  very  meager  in  its  pro- 
visions controlling  the  government  of  territories.  Section  3  of 
Article  IV  runs  as  follows:  — 

New  States  may  be  admitted  by  the  Congress  into  this  Union ; 
but  no  new  State  shall  be  formed  or  erected  within  the  jurisdiction 
of  any  other  State ;  nor  shall  any  State  be  formed  by  the  junction 
of  two  or  more  States  or  parts  of  States,  without  the  consent  of 
the  legislatures  of  the  States  concerned  as  well  as  of  the  Congress. 

The  Congress  shall  have  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States;  and  nothing  in  this 
Constitution  shall  be  so  construed  as  to  prejudice  any  claims  of 
the  United  States  or  of  any  particular  State. 

154.   Constitutional  Limitations  on  Congress  in  Governing 
Territories  * 

In  discussing  the  powers  of  Congress  in  the  government  of 
territories,  Mr.  Justice  Day  made  the  following  observations:  — 

It  may  be  regarded  as  settled  that  the  Constitution  of  the  United   The 
^.,,  .  ,..  -1  lu    Constitution 

States  IS  the  only  source  of  power  authorizmg  action  by  any  branch   ^^^ 

of  the  federal  government.    "The  government  of  the  United  States   territories. 

was  born  of  the  Constitution,  and  all  powers  which  it  enjoys  or 

may  exercise  must  be  either  derived  expressly  or  by  implication 

from  that  instrument."     It  is  equally  well  settled  that  the  United 

States  may  acquire  territory  in  the  exercise  of  the  treaty-making 

power  by  direct  cession  as  the  result  of  war  and  in  making  effectual 

the  terms  of  peace;   and  for  that  purpose  has  the  powers  of  other 

375 


376 


American   Government  and   Politics 


Congress 
not  without 
limitations. 


The 

application 
of  the 

prohibitions 
depends  on 
the  character 
of  the 
territory. 


sovereign  nations.  This  principle  has  been  recognized  by  this  Court 
from  its  earliest  decisions.  The  Convention  which  framed  the 
Constitution  of  the  United  States,  in  view  of  the  territory  already 
possessed  and  the  possibility  of  acquiring  more,  inserted  in  that 
instrument,  in  Article  IV,  section  3,  a  grant  of  express  power  to 
Congress  "to  dispose  of  and  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the  United 
States." 

While  these  cases  and  others  which  are  cited  in  the  late  case  of 
Downes  ■:'.  Bidwell  sustain  the  right  of  Congress  to  make  laws  for 
the  government  of  territories  without  being  subject  to  all  the  re- 
strictions which  are  imposed  on  that  body  when  passing  laws  for 
the  United  States,  considered  as  a  political  body  of  states  in  union, 
the  exercise  of  the  power  expressly  granted  to  govern  the  territories 
is  not  without  limitations.  Speaking  of  this  power  Mr.  Justice 
Curtis  said:  "If  then  this  clause  does  contain  a  power  to  legislate 
respecting  the  territory,  what  are  the  Hmits  of  that  power  ?  To  this, 
I  answer  that,  in  common  with  all  the  other  legislative  powers  of 
Congress,  it  finds  limits  in  the  express  prohibitions  on  Congress  not 
to  do  certain  things;  that  in  the  exercise  of  legislative  power. 
Congress  cannot  pass  an  ex  post  facto  law  or  bill  of  attainder  and 
so  in  respect  to  each  of  the  other  prohibitions  contained  in  the 
Constitution." 

In  every  case  where  Congress  undertakes  to  legislate  in  the 
exercise  of  the  power  conferred  by  the  Constitution,  the  question 
may  arise  as  to  how  far  the  exercise  is  limited  by  the  "prohibi- 
tions "  of  that  instrument.  The  limitations  which  are  to  be 
applied  in  any  given  case  involving  territorial  government  must 
depend  upon  the  relation  of  the  particular  territory  to  the  United 
States,  concerning  which  Congress  is  exercising  the  power  con- 
ferred by  the  Constitution.  That  the  United  States  may  have 
territory  which  is  not  incorporated  into  the  United  States  as  a 
body  politic,  we  think  was  recognized  by  the  framers  of  the  Consti- 
tution in  enacting  the  article  already  considered  giving  power  over 
the  territories  and  is  sanctioned  by  the  opinions  of  the  justices 


The   Government  of  Territories  377 

concurring  in  the  judgment  in  Downes  v.  Bidwell.  Until  Congress 
shall  see  fit  to  incorporate  territory  ceded  by  treaty  into  the  United 
States,  we  regard  it  as  settled  by  that  decision  that  the  territory 
is  to  be  governed  under  the  power  existing  in  Congress  to  make  laws 
for  such  territories  and  subject  to  such  constitutional  restrictions 
upon  the  powers  of  that  body  as  are  applicable  to  the  situation. 
For  this  case  the  practical  question  is,  must  Congress  in  establish- 
ing a  system  for  trial  of  crimes  and  offenses  committed  in  the 
Philippine  Islands  carry  to  their  people  by  proper  afi&rmative 
legislation  a  system  of  trial  by  jury  ? 

It  was  said  in  the  Mankichi  case  that  when  the  territory  had  not  Jury  trial 
been  incorporated  into  the  United  States  these  requirements  funckmental 
[relating  to  indictment  by  grand  jury  and  trial  by  jury]  were  not  right, 
limitations  upon  the  power  of  Congress  in  providing  a  government 
for  territory  in  execution  of  the  powers  conferred  upon  Congress. 
In  the  same  case  Mr.  Justice  Brown  in  the  course  of  his  opinion 
said:  "We  would  say  that  most  if  not  all  the  privileges  and  im- 
munities contained  in  the  bill  of  rights  of  the  Constitution  were 
intended  to  apply  from  the  moment  of  annexation ;  but  we  place 
our  decision  of  this  case  upon  the  ground  that  the  two  rights  al- 
leged to  be  violated  in  this  case  (right  to  trial  by  jury  and  present- 
ment by  grand  jury)  are  not  fundamental  in  their  nature,  but 
concern  merely  a  method  of  procedure  which  sixty  years  of  practice 
had  shown  to  be  suited  to  the  conditions  of  the  islands,  and  well 
calculated  to  conserve  the  rights  of  their  citizens  to  their  lives,  their 
property  and  their  well-being." 

We  conclude  that  the  power  to  govern  territory,  implied  in  the  Conclusion, 
right  to  acquire  it,  and  given  to  Congress  in  the  Constitution  in 
Article  IV,  section  3,  to  whatever  other  limitations  it  may  be  sub- 
ject, the  extent  of  which  must  be  decided  as  questions  arise,  does 
not  require  that  body  to  enact  for  ceded  territory,  not  made  a  part 
of  the  United  States  by  Congressional  action,  a  system  of  laws 
which  shall  include  the  right  of  trial  by  jury,  and  that  the  Con- 
stitution does  not  without  legislation  and  of  its  own  force,  carry 
such  right  to  territory  so  situated. 


378 


American  Government  and   Politics 


155.    Oiir  Relations  with  Cuba 

In  a  joint  resolution,  approved  April  28,  1898,  Congress  set 
forth  these  grounds  for  the  intervention  in  Cuba  which  led  to  the 
w^ar  with  Spain  and  the  acquisition  of  a  protecting  power  over  that 
island :  — 

Whereas  the  abhorrent  conditions  which  have  existed  for  more 
than  three  years  in  the  Island  of  Cuba,  so  near  our  own  borders, 
have  shocked  the  moral  sense  of  the  people  of  the  United  States, 
have  been  a  disgrace  to  Christian  civilization,  culminating,  as  they 
have,  in  the  destruction  of  a  United  States  battleship,  with  two 
hundred  and  sixty-six  of  its  officers  and  crew,  while  on  a  friendly 
visit  in  the  harbor  of  Havana,  and  can  not  longer  be  endured,  as 
has  been  set  forth  by  the  President  of  the  United  States  in  his  mes- 
sage to  Congress  of  April  eleventh,  eighteen  hundred  and  ninety- 
eight,  upon  which  the  action  of  Congress  was  invited :  Therefore, 

Resolved  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  First.  That  the 
people  of  the  Island  of  Cuba  are,  and  of  right  ought  to  be,  free  and 
independent. 

Second.  That  it  is  the  duty  of  the  United  States  to  demand,  and 
the  Government  of  the  United  States  does  hereby  demand,  that 
the  Government  of  Spain  at  once  relinquish  its  authority  and  gov- 
ernment in  the  Island  of  Cuba  and  withdraw  its  land  and  naval 
forces  from  Cuba  and  Cuban  waters. 

Third.  That  the  President  of  the  United  States  be,  and  he 
hereby  is,  directed  and  empowered  to  use  the  entire  land  and  naval 
forces  of  the  United  States,  and  to  call  into  the  actual  service  of  the 
United  States  the  militia  of  the  several  States,  to  such  extent  as  may 
be  necessary  to  carry  these  resolutions  into  effect. 

Fourth.  That  the  United  States  hereby  disclaims  any  disposi- 
tion or  intention  to  exercise  sovereignty,  jurisdiction,  or  control 
over  said  Island  except  for  the  pacification  thereof,  and  asserts  its 
determination,  when  that  is  accomplished,  to  leave  the  government 
and  control  of  the  Island  to  its  people. 


The   Government  of  Territories 


379 


The  following  provisions  of  law  govern  the  relations  of  Cuba  with 
the  United  States.  They  were  incorporated,  as  the  "  Piatt  amend- 
ment," to  the  army  appropriation  act  of  March,  1901,  and  accepted 
by  the  Cubans  as  an  appendix  to  their  constitution :  — 

That  the  government  of  Cuba  shall  never  enter  into  any  treaty 
or  other  comjjact  with  any  foreign  power  or  powers  which  will 
impair  or  tend  to  impair  the  independence  of  Cuba,  nor  in  any 
manner  authorize  or  permit  any  foreign  power  or  powers  to  obtain 
by  colonization  or  for  military  or  naval  purposes  or  otherwise, 
lodgment  in  or  control  over  any  portion  of  said  island. 

That  said  government  shall  not  assume  or  contract  any  public 
debt,  to  pay  the  interest  upon  which,  and  to  make  reasonable 
sinking  fund  provision  for  the  ultimate  discharge  of  which,  the 
ordinary  revenues  of  the  island,  after  defraying  the  current  ex- 
penses of  government  shall  be  inadequate. 

That  the  government  of  Cuba  consents  that  the  United  States 
may  exercise  the  right  to  intervene  for  the  preservation  of  Cuban 
independence,  the  maintenance  of  a  government  adequate  for  the 
protection  of  life,  projierty,  and  individual  liberty,  and  for  dis- 
charging the  obligations  with  respect  to  Cuba  imposed  by  the  treaty 
of  Paris  on  the  United  States,  now  to  be  assumed  and  undertaken 
by  the  government  of  Cuba. 

That  all  Acts  of  the  United  States  in  Cuba  during  its  military 
occupancy  thereof,  are  ratified  and  validated,  and  lawful  rights 
acquired  thereunder  shall  be  maintained  and  protected. 

That  the  government  of  Cuba  will  execute,  and  as  far  as  neces- 
sary extend,  the  plans  already  devised  or  other  plans  to  be  mutually 
agreed  upon  for  the  sanitation  of  the  cities  of  the  island,  to  the  end 
that  a  recurrence  of  epidemic  and  infectious  diseases  may  be  pre- 
vented, thereby  assuring  protection  to  the  people  and  commerce  of 
Cuba,  as  well  as  to  the  commerce  of  the  southern  ports  of  the  United 
States  and  the  {)eo{)le  residing  therein. 

That  the  Isle  of  Pines  shall  be  omitted  from  the  proposed  con- 
stitutional boundaries  of  Cuba,  the  title  thereto  being  left  to  future 
adjustment  by  treaty. 


Foreign 
relations. 


Debts. 


Inter- 
vention. 


Improve- 
ment of 
conditions 
in  Cuba. 


38o 


American   Government  and   Politics 


That  to  enable  the  United  States  to  maintain  the  independence  of 
Cuba,  and  to  protect  the  people  thereof,  as  well  as  for  its  own  de- 
fense, the  government  of  Cuba  will  sell  or  lease  to  the  United  States 
lands  necessary  for  coaling  or  naval  stations,  at  certain  specified 
points,  to  be  agreed  upon  with  the  President  of  the  United  States. 

That  by  way  of  further  assurance  the  government  of  Cuba  will 
embody  the  foregoing  provisions  in  a  permanent  treaty  with  the 
United  States. 


156.   Principles  of  American  Policy  in  the  Philippines 

In  I  goo,  President  McKinley  appointed  the  second  Philippine 
Commission  and  on  April  7  of  that  year  he  transmitted  to  them 
through  the  Secretary  of  War  a  letter  containing  their  instructions 
from  which  these  extracts  are  taken:  — 

In  the  message  transmitted  to  Congress  on  the  5th  of  December, 
1899,  I  said,  speaking  of  the  Philippine  Islands:  "As  long  as  the 
insurrection  continues  the  military  arm  must  necessarily  be  su- 
preme. But  there  is  no  reason  why  steps  should  not  be  taken 
from  time  to  time  to  inaugurate  governments  essentially  popular 
in  their  form  as  fast  as  territory  is  held  and  controlled  by  our  troops. 
To  this  end  I  am  considering  the  advisability  of  the  return  of  the 
commission  or  of  such  members  thereof  as  can  be  secured,  to  aid 
the  existing  authorities  and  facilitate  this  work  throughout  the 
island." 

To  give  effect  to  the  intention  thus  expressed,  I  have  appointed 
Hon.  William  H.  Taft,  of  Ohio;  Prof.  Dean  C.  Worcester,  of 
Michigan;  Hon.  Luke  I.Wright,  of  Tennessee;  Hon.  Henry  C. 
Ide,  of  Vermont,  and  Prof.  Bernard  Moses,  of  California,  Com- 
missioners to  the  Philippine  Islands  to  continue  and  perfect  the 
work  of  organizing  and  establishing  civil  government  already 
commenced  by  the  military  authorities,  subject  in  all  respects  to 
any  laws  which  Congress  may  hereafter  enact. 

The  Commissioners  named  will  meet  and  act  as  a  board,  and 
the  Hon.  William  H.  Taft  is  designated  as  President  of  the  board. 


The  Government  of  Territories  381 

It  is  probable  that  the  transfer  of  authority  from  military  com-   The 
manders  to  civil  officers  will  be  gradual  and  will  occupy  a  con-   ^o^n^'^sion 

°  ^■'  under  the 

siderable  period.  Its  successful  accomplishment  and  the  main-  Secretary 
tenance  of  peace  and  order  in  the  meantime  will  require  the  most 
perfect  cooperation  between  the  civil  and  military  authorities  of 
the  island,  and  both  should  be  directed  during  the  transition  period 
by  the  same  executive  Department.  The  commission  will  there- 
fore report  to  the  Secretary  of  War,  and  all  their  action  will  be 
subject  to  your  approval  and  control. 

You  will  instruct  the  commission  to  proceed  to  the  city  of  Ma-   Municipal 

.,  ,  ,  -11  1        1     •  •      •       1      ,-,'  1  .      governments 

nila,  where  they  will  make  their  pnncipal  omce  and  to  communi- 
cate with  the  military  governor  of  the  Philippine  Islands,  whom 
you  will  at  the  same  time  direct  to  render  to  them  every  assistance 
within  his  power  in  the  performance  of  their  duties.  Without 
hampering  them  by  too  specific  instructions,  they  should  in  gen- 
eral be  enjoined,  after  making  themselves  familiar  with  the  con- 
ditions and  needs  of  the  country,  to  devote  their  attention  in  the 
first  instance  to  the  establishment  of  municipal  governments,  in 
which  the  natives  of  the  islands,  both  in  the  cities  and  in  the  rural 
communities,  shall  be  afforded  the  opportunity  to  manage  their 
own  local  affairs  to  the  fullest  extent  of  which  they  are  capable 
and  subject  to  the  least  degree  of  supervision  and  control  which  a 
careful  study  of  their  capacities  and  observation  of  the  workings 
of  native  control  show  to  be  consistent  with  the  maintenance  of 
law,  order,  and  loyalty. 

The  next  subject  in  order  of  importance  should  be  the  organi-  The  larger 
zation  of  government  in  the  larger  administrative  divisions  cor-  jj^^  divisions 
responding  to  countries,  departments,  or  provinces,  in  which  the 
common  interests  of  many  or  several  municipalities  falling  within 
the  same  tribal  lines,  or  the  same  natural  geographical  limits,  may 
best  be  subserved  by  a  common  administration.  Whenever  the 
commission  is  of  the  opinion  that  the  condition  of  affairs  in  the 
islands  is  such  that  the  central  administration  may  safely  be  trans- 
ferred from  military  to  civil  control,  they  will  report  that  conclu- 
sion to  you,  with  their  recommendations  as  to  the  form  of  central 


382 


American   Government  and   Politics 


The 

commission 

to  have 

certain 

legislative 

power. 


The 

appointment 
of  ofScers. 


government  to  be  established  for  the  purpose  of  taking  over  the 
control. 

Beginning  with  the  first  day  of  September,  1900,  the  authority 
to  exercise,  subject  to  my  approval,  through  the  Secretary  of  War, 
that  part  of  the  power  of  government  in  the  Philippine  Islands 
which  is  of  a  legislative  nature  is  to  be  transferred  from  the  military 
governor  of  the  islands  to  this  commission,  to  be  thereafter  ex- 
ercised by  them  in  the  place  and  stead  of  the  military  governor, 
under  such  rules  and  regulations  as  you  shall  prescribe,  until  the 
establishment  of  the  civil  central  government  for  the  islands  con- 
templated in  the  last  foregoing  paragraph,  or  until  Congress  shall 
otherwise  provide.  Exercise  of  this  legislative  authority  will  in- 
clude the  making  of  rules  and  orders  having  the  eflfect  of  law,  for 
the  raising  of  revenue  by  taxes,  customs  duties,  and  imposts;  the 
appropriation  and  expenditure  of  public  funds  of  the  islands; 
the  establishment  of  an  educational  system  throughout  the  islands ; 
the  estabhshment  of  a  system  to  secure  an  efficient  civil  service; 
the  organization  and  establishment  of  courts;  the  organization 
and  establishment  of  municipal  and  departmental  governments, 
and  all  other  matters  of  a  civil  nature  for  which  the  military  gov- 
ernor is  now  competent  to  provide  by  rules  or  orders  of  a  legis- 
lative character. 

The  commission  will  also  have  power  during  the  same  period 
to  appoint  to  office  such  officers  under  the  judicial,  educational 
and  civil  service  systems  and  in  the  municipal  and  departmental 
governments  as  shall  be  provided  for.  Until  the  complete  transfer 
of  control,  the  military  governor  will  remain  the  chief  executive 
head  of  the  government  of  the  islands,  and  will  exercise  the  execu- 
tive authority  now  possessed  by  him  and  not  herein  expressly 
assigned  to  the  commission,  subject  however  to  the  rules  and  orders 
enacted  by  the  commission  in  the  exercise  of  the  legislative  powers 
conferred  upon  them.  In  the  meantime  the  municipal  and  de- 
partmental governments  will  continue  to  report  to  the  mihtary 
governor  and  be  subject  to  his  administrative  supervision  and 
control,  under  your  direction,  but  that  supervision  and  control  will 


The  Government  of  Territories  383 

be  confined  within  the  narrowest  limits  consistent  with  the  require- 
ment that  the  powers  of  government  in  the  municipahties  and 
departments  shall  be  honestly  and  effectively  exercised  and  that 
law  and  order  and  individual  freedom  shall  be  maintained.  .  .  . 

The  many  different  degrees  of  civilization  and  varieties  of  cus-  Preference 
toms  and  capacity  among  the  people  of  the  different  islands  pre-  "'^  °^  '^^* 
elude  very  definite  instruction  as  to  the  part  which  the  people 
shall  take  in  the  selection  of  their  own  officers  but  these  general 
rules  are  to  be  observed :  That  in  all  cases  the  municipal  officers, 
who  administer  the  local  affairs  of  the  people,  are  to  be  selected 
by  the  people,  and  that  whenever  officers  of  more  extended  juris- 
diction are  to  be  selected  in  any  way,  natives  of  the  islands  are  to 
be  preferred,  and  if  they  can  be  found  competent  and  willing  to 
perform  the  duties,  they  are  to  receive  the  offices  in  preference 
to   any   others. 

It  will  be  necessary  to  fill  some  offices  for  the  present  with 
Americans  which  after  a  time  may  well  be  filled  by  natives  of  the 
islands.  As  soon  as  practicable  a  system  of  ascertaining  the  merit 
and  fitness  of  candidates  for  civil  office  should  be  put  in  force. 
An  indispensable  qualification  for  all  offices  and  positions  of  trust 
and  authority  in  the  islands  must  be  absolute  and  unconditional 
loyalty  to  the  United  States,  and  absolute  and  unhampered  author- 
ity and  power  to  remove  and  punish  any  officer  deviating  from 
that  standard  must  at  all  times  be  retained  in  the  hands  of  the 
central  authority  of  the  islands. 

In  all  the  forms  of  government  and  administrative  provisions   The 
which  they  are  authorized  to  prescribe  the  commission  should   n^ental 
bear  in  mind  that  the  government  which  they  are  establishing  is   guiding 
designed  not  for  our  satisfaction  or  for  the  expression  of  our  theo-   P"^"P  ^' 
retical  views,  but  for  the  happiness,  peace  and  prosperity  of  the 
people  of  the  Philippine  Islands,  and  the  measures  adopted  should 
be  made  to  conform  to  their  customs,  their  habits,  and  even  their 
prejudices,  to  the  fullest  extent  consistent  with  the  accomplish- 
ment of  the  indispensable  requisites  of  just  and  effective  govern- 
ment. 


384  American   Government  and   Politics 

At  the  same  time  the  commission  should  bear  in  mind  and  the 
people  of  the  islands  should  be  made  plainly  to  understand  that 
there  are  certain  great  principles  of  government  which  have  been 
made  the  basis  of  our  governmental  system  which  we  deem  essen- 
tial to  the  rule  of  law  and  the  maintenance  of  individual  freedom, 
and  of  which  they  have,  unfortunately,  been  denied  the  experience 
possessed  by  us ;  that  there  are  also  certain  practical  rules  of  gov- 
ernment which  we  have  found  to  be  essential  to  the  preservation 
of  these  great  principles  of  liberty  and  law,  and  that  these  principles 
and  these  rules  of  government  must  be  established  and  maintained 
in  their  islands  for  the  sake  of  their  liberty  and  happiness,  however 
much  they  may  conflict  with  their  customs  or  laws  of  procedure 
with  which  they  are  familiar.  .  .  . 

Upon  every  division  and  branch  of  the  government  of  the  Philip- 
pines therefore  must  be  imposed  these  inviolable  rules : 

That  no  person  shall  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law;  that  private  property  shall  not  be 
taken  for  public  use  without  just  compensation;  that  in  all  crimi- 
nal prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy  and 
public  trial,  to  be  informed  of  the  nature  and  cause  of  the  accusa- 
tion, to  be  confronted  with  the  witnesses  against  him,  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor,  and  to  have  the 
assistance  of  counsel  for  his  defense ;  that  excessive  bail  shall  not 
be  required,  nor  excessive  fines  imposed,  nor  cruel  and  unusual 
punishment  inflicted;  that  no  person  shall  be  put  twice  in  jeop- 
ardy for  the  same  offense  or  be  compelled  in  any  criminal  case  to 
be  a  witness  against  himself;  that  the  right  to  be  secure  against 
unreasonable  searches  and  seizures  shall  not  be  violated;  that 
neither  slavery  nor  involuntary  servitude  shall  exist  except  as  a 
punishment  for  crime ;  that  no  bill  of  attainder  or  ex  post  facto  law 
shall  be  passed;  that  no  law  shall  be  passed  abridging  the  freedom 
of  speech  or  of  the  press  or  the  rights  of  the  people  to  peaceably 
assemble  and  petition  the  government  for  a  redress  of  grievances; 
that  no  law  shall  be  made  respecting  an  establishment  of  religion 
or  prohibiting  the  free  exercise  thereof;  and  that  the  free  exercise 


The   Government  of  Territories  385 

and  enjoyment  of  religious  profession  and  worship  without  dis- 
crimination or  preference  shall  forever  be  allowed.  .  .  . 


157.    The  Philippine  Assembly 

The  following  proclamation  issued  by  President  Roosevelt  on 
March  28,  1907,  describes  the  steps  taken  under  the  act  of  1902, 
by  which  a  general  election  was  called  in  the  islands  for  the  choice 
of  delegates  to  a  PhiUppine  assembly:  — 

Whereas  by  the  sixth  section  of  the  act  of  Congress  approved  Provision 
July  first,  nineteen  hundred  and  two,  entitled  "An  act  temporarily  census, 
to  provide  for  the  administration  of  the  affairs  of  civil  government 
in  the  Philippine  Islands,  and  for  other  purposes,"  it  was  provided 
"That  whenever  the  existing  insurrection  in  the  Philippine  Islands 
shall  have  ceased,  and  a  condition  of  general  and  complete  peace 
shall  have  been  established  therein,  and  the  fact  shall  be  certified 
to  the  President  of  the  Philippine  Commission,  the  President, 
upon  being  satisfied  thereof  shall  order  a  census  of  the  Philippine 
Islands  to  be  taken  by  said  Philippine  Commission;"   and 

Whereas  by  the  seventh  section  of  said  act  it  was  provided :    Conditions 

warranting 

"That  two  years  after  the  completion  and  publication  of  the  cen-  the  call  of 
sus,  in  case  such  condition  of  general  and  complete  peace  with  the  assembly 
recognition  of  the  authority  of  the  United  States,  shall  have  con- 
tinued in  the  territory  of  said  islands,  not  inhabited  by  Moros  or 
other  non-Christian  tribes,  and  such  facts  shall  have  been  certified 
to  the  President  by  the  Pjjilippine  Commission,  the  President, 
upon  being  satisfied  thereof,  shall  direct  said  Commission  to  call, 
and  the  Commission  shall  call,  a  general  election  for  the  choice  of 
delegates  to  a  popular  assembly  of  the  people  of  said  territory  in 
the  Philippine  Islands,  which  shall  be  known  as  the  Philippine 
Assembly.  After  said  Assembly  shall  have  convened  and  organ- 
ized, all  the  legislative  power  heretofore  conferred  on  the  Philip- 
pine Commission  in  all  that  part  of  said  Islands  not  inhabited  by 
Moros  or  other  non-Christian  tribes  shall  be  vested  in  the  legis- 
lature consisting  of  two  houses  —  the  PhiHppine  Commission  and 


386 


American  Government  and  Politics 


The 

commission 
advises  the 
President. 


the  Philippine  Assembly.  Said  Assembly  shall  consist  of  not  less 
than  fifty  nor  more  than  one  hundred  members,  to  be  apportioned 
by  said  Commission  among  the  provinces  as  nearly  as  practicable 
according  to  population,  Provided,  That  no  province  shall  have  less 
than  one  member:  And,  provided  further,  That  provinces  en- 
titled by  population  to  more  than  one  member  may  be  divided 
into  such  convenient  districts  as  the  said  Commission  may  deem 
best ; "  and 

Whereas  on  September  8,  1902,  the  Philippine  Commission 
certified  to  me  that  the  insurrection  of  the  Philippine  Islands  had 
ceased,  and  that  a  condition  of  general  and  complete  peace  had 
been  established  therein;    and 

Whereas  in  pursuance  of  the  provisions  of  the  law  above  quoted, 
and  upon  the  foregoing  due  certification,  and  being  satisfied  of  the 
facts  therein  stated,  on  the  25th  day  of  September,  1902,  I  ordered 
a  census  of  the  Philippine  Islands  to  be  taken  by  the  Philippine 
Commission ;    and 

Whereas,  the  census  so  ordered  was  taken  and  announcement 
of  its  completion  and  publication  made  to  the  people  of  the  Philip- 
pine Islands  on  March  28,  1905;   and 

Whereas  the  Philippine  Commission  has  now  certified  to  me 
the  following  resolution : 

"Whereas  the  census  of  the  Philippine  Islands  was  completed 
and  published,  on  the  27th  day  of  March,  1905,  which  said  com- 
pletion and  publication  of  said  census  was,  on  the  28th  day  of 
March,  1905,  duly  published  and  proclaimed  to  the  people  by  the 
governor-general  of  the  Philippine  Islands  with  the  announcement 
that  the  President  of  the  United  States  would  direct  the  Phihppine 
Commission  to  call  a  general  election  for  the  choice  of  delegates 
to  a  popular  assembly,  provided  that  a  condition  of  general  and 
complete  peace,  with  recognition  of  the  authority  of  the  United 
States,  should  be  certified  by  the  Philippine  Commission  to  have 
continued  in  the  territory  of  the  Philippine  Islands  for  a  period  of 
two  years  after  said  completion  and  publication  of  said  census; 
and 


The   Government  of  Territories  387 

"Whereas  since  the  completion  and  publication  of  said  census,   Good  order 
there  have  been  no  serious  disturbances  of  the  public  order  save   maintained 
and  except  those  caused  by  the  noted  outlaws  and  bandit  chieftains,  in  the 
Felizardo  and  Montalon,  and  their  followers  in  the  provinces  of 
Cavite  and  Batangas,  and  those  caused  in  the  provinces  of  Samar 
and  Leyte  by  the  non-Christian  and  fanatical  pulajanes  resident 
in  the  mountain  districts  of  the  said  provinces,  and  the  barrios 
contiguous  thereto;   and 

"Whereas  the  overwhelming  majority  of  the  people  of  said 
provinces  of  Cavite,  Batangas,  Samar,  and  Leyte  have  not  taken 
part  in  said  disturbances  and  have  not  aided  nor  abetted  the  law- 
less acts  of  said  bandits  and  pulajanes;   and 

"Whereas  the  great  mass  and  body  of  Philippine  people  have, 
during  said  period  of  two  years,  continued  to  be  law  abiding, 
peaceful  and  loyal  to  the  United  States,  and  have  continued  to 
recognize  and  do  now  recognize  the  authority  and  sovereignty  of 
the  United  States  in  the  territory  of  said  Philippine  Islands,  Now 
therefore  be  it 

"Resolved  by  the  Philippine  Commission  in  formal  session 
duly  assembled,  that  it,  said  Philippine  Commission,  do  certify 
and  does  hereby  certify  to  the  President  of  the  United  States  that 
for  a  period  of  two  years  after  the  completion  and  publication  of 
the  census  a  condition  of  general  and  complete  peace  with  recog- 
nition of  the  authority  of  the  United  States,  has  continued  to  exist, 
and  now  exists  in  the  territory  of  said  Philippine  Islands,  not  in- 
habited by  Moros  or  other  non-Christian  tribes ;  and  be  it  further 

"Resolved  by  said  Philippine  Commission,  That  the  President 
of  the  United  States  be  requested  and  is  hereby  requested  to  direct 
said  Philippine  Commission  to  call  a  general  election  for  the 
choice  of  delegates  to  a  popular  assembly  of  the  people  of  said 
territory  in  the  Philippine  Islands,  which  assembly  shall  be  known 
as  the  Philippine  Assembly;" 

Now,  therefore,  I,  Theodore  Roosevelt,  President  of  the  United 
States,  in  pursuance  of  the  provisions  uf  the  law  above  cited,  and 


388 


American   Government  and   Politics 


Proclama- 
tion calling 
the  election. 


being  satisfied  of  the  facts  certified  to  me  by  the  Phihppine  Com- 
mission do  hereby  direct  said  Phihppine  Commission  to  call  a 
general  election  for  the  choice  of  delegates  to  a  popular  assembly 
of  the  people  of  the  territory  of  the  Philippine  Islands  not  inhabited 
by  the  Moros  or  other  non-Christian  tribes  which  shall  be  known 

as  the  Philippine  Assembly. 

Theodore  Roosevelt. 
The  White  House,  March  28,  1907. 


Status  of  the 
inhabitants. 


The  chief 
executive. 


158.    The  Organization  of  Government  in  Porto  Rico 

These  extracts  from  the  organic  law  of  Porto  Rico  give  the  prin- 
cipal sections  dealing  with  the  form  of  government  for  that  de- 
pendency :  — 

Sec.  6.  That  the  capital  of  Porto  Rico  shall  be  at  the  city  of 
San  Juan  and  the  seat  of  government  shall  be  maintained  there. 

Sec.  7.  That  all  inhabitants  continuing  to  reside  therein  who 
were  Spanish  subjects  on  the  eleventh  day  of  April,  eighteen 
hundred  and  ninety-nine,  and  then  resided  in  Porto  Rico,  and 
their  children  born  subsequent  thereto,  shall  be  deemed  and  held 
to  be  citizens  of  Porto  Rico,  and  as  such  entitled  to  the  protection 
of  the  United  States,  except  such  as  shall  have  elected  to  preserve 
their  allegiance  to  the  Crown  of  Spain  on  or  before  the  eleventh 
day  of  April,  nineteen  hundred,  in  accordance  with  the  provisions 
of  the  treaty  of  peace  between  the  United  States  and  Spain  entered 
into  on  the  eleventh  day  of  April,  eighteen  hundred  and  ninety- 
nine;  and  they,  together  with  such  citizens  of  the  United  States 
as  may  reside  in  Porto  Rico,  shall  constitute  a  body  politic  under 
the  name  of  The  People  of  Porto  Rico,  with  governmental  powers 
as  hereinafter  conferred,  and  with  power  to  sue  and  be  sued  as 
such. 

Sec  17.  That  the  official  title  of  the  chief  executive  officer 
shall  be  "The  Governor  of  Porto  Rico."  He  shall  be  appointed 
by  the  President,  by  and  with  the  advice  and  consent  of  the  Senate ; 
he  shall  hold  his  office  for  a  term  of  four  years  and  until  his  suc- 
cessor is  chosen  and  qualified  unless  sooner  removed  by  the  Presi- 


The  Government  of  Territories  389 

dent ;  he  shall  reside  in  Porto  Rico  during  his  official  incumbency, 
and  shall  maintain  his  office  at  the  seat  of  government;  he  may 
granc  pardons  and  reprieves,  and  remit  fines  and  forfeitures  for 
offenses  against  the  laws  of  Porto  Rico,  and  respites  for  offenses 
against  the  laws  of  the  United  States,  until  the  decision  of  the 
President  can  be  ascertained;  he  shall  commission  all  officers  that 
he  may  be  authorized  to  appoint,  and  may  veto  any  legislation  en- 
acted, as  hereinafter  provided ;  he  shall  be  the  commander  in  chief 
of  the  militia,  and  shall  at  all  times  faithfully  execute  the  laws, 
and  he  shall  in  that  behalf  have  all  the  powers  of  governors  of  the 
Territories  of  the  United  States  that  are  not  locally  inapplicable; 
and  he  shall  annually,  and  at  such  other  times  as  he  may  be  re- 
quired, make  official  report  of  the  transactions  of  the  government 
in  Porto  Rico,  through  the  Secretary  of  State,  to  the  President  of 
the  United  States:  Provided,  That  the  President  may  in  his  dis- 
cretion, delegate  and  assign  to  him  such  executive  duties  and 
functions  as  may  in  pursuance  with  law  be  so  delegated  and 
assigned. 

Sec.  18.    That  there  shall  be  appointed  by  the  President,  by   The 

executive 

and  with  the  advice  and  consent  of  the  Senate,  for  the  period  of  officials  and 
four  years,  unless  sooner  removed  by  the  President,  a  secretary,  council, 
an  attorney-general,  a  treasurer,  an  auditor,  a  commissioner  of 
the  interior,  and  a  commissioner  of  education,  each  of  whom  shall 
reside  in  Porto  Rico  during  his  official  incumbency  and  have  the 
powers  and  duties  hereinafter  provided  for  them,  respectively, 
and  who,  together  with  five  other  persons  of  good  repute,  to  be  also 
appointed  by  the  President  for  a  like  term  of  four  years,  by  and 
with  the  advice  and  consent  of  the  Senate,  shall  constitute  an 
executive  council,  at  least  five  of  whom  shall  be  native  inhabitants 
of  Porto  Rico,  and,  in  addition  to  the  legislative  duties  hereinafter 
imposed  upon  them  as  a  body,  shall  exercise  such  pov/ers  and  per- 
form such  duties  as  are  hereinafter  provided  for  them,  respectively, 
and  who  shall  have  power  to  employ  all  necessary  deputies  and 
assistants  for  the  proper  discharge  of  their  duties  as  such  officials 
and  as  such  executive  council. 


390  American  Government  and   Politics 

The  Sec.  27.   That  all  local  legislative  powers  hereby  granted  shall 

egis  a  ure.  j^^  vested  ill  a  legislative  assembly  which  shall  consist  of  two  houses ; 
one  the  executive  council,  as  hereinbefore  constituted,  and  the 
other  a  house  of  delegates,  to  consist  of  thirty-five  members  elected 
biennially  by  the  qualified  voters  as  hereinafter  provided;  and 
the  two  houses  thus  constituted  shall  be  designated  "The  legis- 
lative assembly  of  Porto  Rico." 

SeG.  28.  That  for  the  purposes  of  such  elections  Porto  Rico 
shall  be  divided  by  the  executive  council  into  seven  districts,  com- 
posed of  contiguous  territory  and  as  nearly  equal  as  may  be  in  popu- 
lation, and  each  district  shall  be  entitled  to  five  members  of  the 
house  of  delegates.  .  .  . 


PART    III 
STATE   GOVERNMENT 

CHAPTER  XXII 

THE  CONSTITUTIONAL   BASIS   OF   STATE   GOVERNMENT 

159.   Federal  Limitations  on  State  Authorities 

In  addition  to  constructing  a  system  of  government  endowed 
with  certain  powers,  the  framers  of  the  federal  Constitution  drew 
about  the  states  a  cordon  of  restrictions  in  favor  of  national  in- 
terests and  private  rights,  and  at  the  close  of  the  Civil  War  these 
limitations  were  supplemented  by  amendments  of  the  most 
fundamental  character.  Within  the  sphere  of  power  thus  marked 
out  in  the  Constitution  all  state  authorities  must  operate  under 
the  supervision  of  the  federal  judiciary. 

1.  No  State  shall  enter  into  any  treaty,  alliance,  or  confedera-  Article  I, 
tion;    grant  letters  of   marque  and  reprisal;    coin  money;    emit  of  the  federal 
bills  of  credit;   make  any  thing  but  gold  and  silver  coin  a  tender  Constitution. 
in  payment  of  debts;   pass  any  bill  of  attainder,  ex  post  facto  law, 

or  law  impairing  the  obligation  of  contracts ;   or  grant  any  title  of 
nobility. 

2.  No  State  shall,  without  the  consent  of  the  Congress,  lay  any 
imposts  or  duties  on  imports  or  exports,  except  what  may  be  ab- 
solutely necessary  for  executing  its  inspection  laws;  and  the  net 
produce  of  all  duties  and  imposts  laid  by  any  State  on  imports  or 
exports  shall  be  for  the  use  of  the  treasury  of  the  United  States, 
and  all  such  laws  shall  be  subject  to  the  revision  and  control  of 
the  Congress. 

3.  No  State  shall,  without  the  consent  of  Congress,  lay  any 

391 


39^ 


American   Government  and  Politics 


From 
Article  IV 
of  the  federal 
Constitution. 


duty  of  tonnage,  keep  troops  or  ships  of  war  in  time  of  peace, 
enter  into  any  agreement  or  compact  with  another  State  or  with 
a  foreign  power,  or  engage  in  war  unless  actually  invaded,  or  in 
such  imminent  danger  as  will  not  admit  of  delay. 

1.  Full  faith  and  credit  shall  be  given  in  each  State  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  State.  And 
the  Congress  may,  by  general  laws,  prescribe  the  manner  in  which 
such  acts,  records,  and  proceedings  shall  be  proved,  and  the  effect 
thereof. 

2.  The  citizens  of  each  State  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  States. 

A  person  charged  in  any  State  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice  and  be  found  in  another  State, 
shall,  on  demand  of  the  executive  autht)rity  of  the  State  from 
which  he  fled,  be  dehvered  up,  to  be  removed  to  the  State  having 
jurisdiction  of  the  crime. 

No  person  held  to  service  or  labor  in  one  State  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from  such  service  or  labor, 
but  shall  be  delivered  up  on  claim  of  the  party  to  whom  such  serv- 
ice or  labor  may  be  due. 

4.  The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government,  and  shall  protect  each 
of  them  against  invasion ;  and,  on  application  of  the  Legislature, 
or  of  the  executive  (when  the  Legislature  cannot  be  convened), 
against  domestic  violence. 


Amend- 
ments to 
the  federal 
Constitution. 


Article  XIII 

1.  Neither  slavery  nor  involuntary  servitude,  except  as  a  pun- 
ishment for  crime  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  any  place  subject  to  their 
jurisdiction. 

2.  Congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation. 


The  Constitutional  Basis  of  State  Government     393 

Article  XIV 

1.  All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside.  No  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States;  nor  shall  any  State  deprive  any 
person  of  life,  Hberty,  or  property,  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws. 

2.  Representatives  shall  be  apportioned  among  the  several 
States  according  to  their  respective  numbers,  counting  the  whole 
number  of  persons  in  each  State,  excluding  Indians  not  taxed. 
But  when  the  right  to  vote  at  any  election  for  the  choice  of  electors 
for  President  and  Vice-President  of  the  United  States,  representa- 
tives in  Congress,  the  executive  and  judicial  officers  of  a  State,  or 
the  members  of  the  Legislature  thereof,  is  denied  to  any  of  the 
male  inhabitants  of  such  State,  being  twenty-one  years  of  age,  and 
citizens  of  the  United  States,  or  in  any  way  abridged,  except  for 
participation  in  rebellion  or  other  crime,  the  basis  of  representa- 
tion therein  shall  be  reduced  in  the  proportion  which  the  number 
of  such  male  citizens  shall  bear  to  the  whole  number  of  male 
citizens  twenty-one  years  of  age  in  such  State. 

3.  No  person  shall  be  a  senator  or  representative  in  Congress, 
or  elector  of  President  and  Vice-President,  or  hold  any  office, 
civil  or  mihtary,  under  the  United  States,  or  under  any  State,  who, 
having  previously  taken  an  oath,  as  a  member  of  Congress,  or  as 
an  officer  of  the  United  States,  or  as  a  member  of  any  State  Legis- 
lature, or  as  an  executive  or  judicial  officer  of  any  State,  to  support 
the  Constitution  of  the  United  States,  shall  have  engaged  in  insur- 
rection or  rebellion  against  the  same,  or  given  aid  and  comfort  to 
the  enemies  thereof.  But  Congress  may,  by  a  vote  of  two-thirds 
of  each  House,  remove  such  disabihty. 

4.  The  validity  of  the  public  debt  of  the  United  States,  au- 
thorized by  law,  including  debts  incurred  for  payment  of  pensions 


394 


American   Government  and   Politics 


and  bounties  for  services  in  suppressing  insurrection  or  rebellion, 
shall  not  be  questioned.  But  neither  the  United  States  nor  any 
State  shall  assume  or  pay  any  debt  or  obligation  incurred  in  aid 
of  insurrection  or  rebellion  against  the  United  States,  or  any  claim 
for  the  loss  or  emancipation  of  any  slave;  but  all  such  debts,  ob- 
ligations, and  claims  shall  be  held  illegal  and  void. 

5.  The  Congress  shall  have  power  to  enforce  by  appropriate 
legislation  the  provisions  of  this  article. 

Article  XV 

1.  The  right  of  the  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States  or  any  State  on 
account  of  race,  color,  or  previous  condition  of  servitude. 

2.  The  Congress  shall  have  powder  to  enforce  by  appropriate 
legislation  the  provisions  of  this  article. 


160.    The  Police  Power  of  the  State 

The  police  pov^er  of  the  state  is  rightly  called  "  the  dark  con- 
tinent" of  American  constitutional  law,  because  it  is  the  vague 
and  undefinable  authority  for  acting  in  the  name  of  the  public 
welfare,  which  the  state  retains  in  spite  of  the  restrictions  imposed 
by  the  federal  Constitution.  The  Supreme  Court  refuses  to 
estabHsh  the  limits  of  this  authority  in  the  abstract,  but  it  is  con- 
stantly deciding  whether  specific  acts  of  the  states  are  warranted 
under  the  police  power,  or  are  outside  that  sphere.  The  subject 
is  thus  discussed  by  the  Court:  — 

The  Fourteenth  Amendment,  in  declaring  that  no  State  "shall 
deprive  any  person  of  life,  liberty,  or  property,  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws"  undoubtedly  intended  not  only  that  there 
should  be  no  arbitrary  deprivation  of  life  or  liberty,  or  arbitrary 
spoliation  of  property,  but  that  equal  protection  and  security 
should  be  given  to  all  under  like  circumstances  in  the  enjoyment 
of  their  personal  and  civil  rights ;  that  all  persons  should  be  equally 
entitled  to  pursue  their  happiness  and  acquire  and  enjoy  property; 


The  Constitutional   Basis  of  State  Government     395 

that  they  should  have  like  access  to  the  courts  of  the  country  for 
the  protection  of  their  persons  and  property,  the  prevention  and 
redress  of  wrongs,  and  the  enforcement  of  contracts ;.  that  no  im- 
pediments should  be  interposed  to  the  pursuits  of  anyone  except 
as  applied  to  the  same  pursuits  by  others  under  Hke  circumstances; 
that  no  greater  burdens  should  be  laid  upon  one  than  are  laid 
upon  others  in  the  same  calHng  and  condition;  and  that  in  the 
administration  of  criminal  justice  no  diiferent  or  higher  punish- 
ment should  be  imposed  upon  one  than  such  as  is  prescribed  to  all 
for  like  offences. 

But  neither  this  Amendment,  broad  and  comprehensive  as  it  is,  ^°  amend- 
nor  any  other  amendment,  was  designed  to  interfere  with  the  power  feres  with 
of  the  State,  sometimes  termed  its  police  power,  to  prescribe  regu-  the  police 
lations  to  promote  the  health,  morals,  education,  and  good  order 
of  the  people,  and  to  legislate  so  as  to  increase  the  industries  of 
the  State,  develop  its  resources,  and  add  to  its  wealth  and  pros- 
perity. From  the  very  necessities  of  society,  legislation  of  a 
special  character,  having  these  objects  in  view,  must  often  be  had 
in  certain  districts,  such  as  for  draining  marshes  and  irrigating 
arid  plains.  Special  burdens  are  often  necessary  for  general  bene- 
fits, —  for  supplying  water,  preventing  fires,  lighting  districts, 
cleaning  streets,  opening  parks,  and  many  other  objects.  Regu- 
lations for  these  purposes  may  press  with  more  or  less  weight  upon 
one  than  upon  another,  but  they  are  designed,  not  to  impose  un- 
equal or  unnecessary  restrictions  upon  anyone,  but  to  promote, 
with  as  little  individual  inconvenience  as  possiljle,  the  general 
good.  Though,  in  many  respects,  necessarily  special  in  their 
character,  they  do  not  furnish  just  ground  of  complaint  if  they 
operate  alike  upon  all  persons  and  property  under  the  same  cir- 
cumstances and  conditions 

The  extent  and  Hmits  of  what  is  known  as  the  "police  power"    What  con- 

...  ,,  ,       stitutes  an 

have  been  a  fruitful  subject  of  discussion  in  the  appellate  courts    exercise  of 
of  every  State  in  the  Union.     It  is  universally  conceded  to  include   the  police 
everything  essential  to  the  public  safety,  health,  and  morals,  and 
to  justify  the  destruction  or  abatement  by  summary  proceedings 


39^ 


American  Government  and  Politics 


When 

judicial  pro- 
ceedings are 
required. 


of  whatever  may  be  regarded  as  a  public  nuisance.  Under  this 
power  it  has  been  held  that  the  State  may  order  the  destruction 
of  a  house  falling  to  decay,  or  otherwise  endangering  the  lives  of 
passers-by ;  the  demolition  of  such  as  are  in  the  path  of  a  confla- 
gration; the  slaughter  of  diseased  cattle;  the  destruction  of  de- 
cayed or  unwholesome  food;  the  prohibition  of  wooden  build- 
ings in  cities ;  the  regulation  of  railways  and  other  means  of  public 
conveyance  and  of  interments  in  burial  grounds;  the  restriction 
of  objectionable  trades  to  certain  localities;  the  compulsory  vac- 
cination of  children;  the  conlinement  of  the  insane  or  those  af- 
flicted with  contagious  diseases;  the  restraint  of  vagrants,  beggars, 
and  habitual  drunkards;  the  suppression  of  obscene  publications 
and  houses  of  ill-fame;  and  the  prohibition  of  gambling  houses 
and  places  where  intoxicating  liquors  are  sold.  Beyond  this, 
however,  the  State  may  interfere  wherever  the  public  interests 
demand  it,  and  in  this  particular  a  large  discretion  is  necessarily 
vested  in  the  legislature  to  determine,  not  only  what  the  interests 
of  the  public  require,  but  what  measures  are  necessary  for  the 
protection  of  such  interests.  To  justify  the  State  in  thus  inter- 
posing its  authority  on  behalf  of  the  puljlic,  it  must  appear,  first, 
that  the  interests  of  the  public  generally,  as  distinguished  from 
those  of  a  particular  class,  require  such  interference;  and  second, 
that  the  means  are  reasonably  necessary  for  the  accom]ilishment 
of  the  purpose,  and  not  vmduly  oppressive  upon  individuals. 
The  legislature  may  not  under  the  guise  of  protecting  public  in- 
terests, arbitrarily  interfere  with  private  business,  or  impose  un- 
usual or  unnecessary  restrictions  upon  lawful  occupations.  In 
other  words,  its  determination  as  to  what  is  a  proper  exercise  of 
its  police  powers  is  not  final  or  conclusive,  but  is  subject  to  the 
supervision  of  the  courts.  .  .  . 

It  is  not  easy  to  draw  the  line  between  cases  where  property 
illegally  used  may  be  destroyed  summarily  [under  the  ])olice  power] 
and  where  judicial  proceedings  are  necessary  for  its  condemna- 
tion. If  the  property  were  of  great  value,  as  for  instance,  if  it 
were  a  vessel  employed  for  smuggling  or  other  illegal  purposes. 


The  Constitutional   Basis  of  State  Government     397 

it  would  be  putting  a  dangerous  power  in  the  hands  of  a  custom 
officer  to  permit  him  to  sell  or  destroy  it  as  a  public  nuisance,  and 
the  owner  would  have  good  reason  to  complain  of  such  an  act  as 
depriving  him  of  his  property  without  due  process  of  law.  But 
where  the  property  is  of  trifling  value,  and  its  destruction  is  nec- 
essary to  effect  the  object  of  a  certain  statute,  we  think  it  is  within 
the  power  of  the  legislature  to  order  its  summary  abatement. 
For  instance,  if  the  legislature  should  prohibit  the  killing  of  fish 
by  explosive  shells,  and  should  order  the  cartridges  so  used  to  be 
destroyed,  it  would  seem  like  the  belittling  of  the  judiciary  to  re- 
quire such  destruction  to  be  preceded  by  a  solemn  condemnation 
in  a  court  of  justice. 

161,   How  a  Territory  Is  Authorized  to  Form  a  Constitution 

Although  the  inhabitants  of  a  territory  may,  on  their  own  au- 
thority, call  a  convention,  frame  a  constitution,  and  ask  Congress 
for  admission  into  the  Union,  the  more  regular  method  is  to  secure 
permission  from  Congress  to  take  the  preliminary  steps  in  the 
establishment  of  self-government.  This  extract  from  the  enabling 
act  for  the  territory  of  Utah  illustrates  the  process,  and  also  shows 
how  Congress  may  impose  restrictions  on  new  states  before  their 
admission. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled:  That  the  inhabit- 
ants of  all  that  part  of  the  area  of  the  United  States  now  consti- 
tuting the  Territory  of  Utah,  as  at  present  described,  may  become 
the  State  of  Utah,  as  hereinafter  provided. 

Sec.  2.    That  all  male  citizens  over  the  age  of  twenty-one  years,   The  election 
who  have  resided  in  said  Territory  for  one  year  next  prior  to  such   ^^^^  ^^  ^^^  ' 
election,  are  hereby  authorized  to  vote  for  and  choose  delegates  to  convention, 
form  a  Convention  in  said  Territory.     Such  delegates  shall  possess 
the  qualifications  of  such  electors;    and  the  aforesaid  Convention 
shall  consist  of  one  hundred  and  seven  delegates,   apportioned 
among  the  several  counties  within   the   limits  of  the  proposed 
State.  .  .  . 


39^ 


American   Government  and   Politics 


The  con- 
vention to 
frame  a 
constitution. 


Limitations 
on  the  con- 
stitution. 


Restrictions 
as  to  schools. 


How  the 
State  maj'  be 
admitted 
into  the 
Union. 


Sec.  3.  That  the  delegates  to  the  Convention  thus  elected  shall 
meet  at  the  seat  of  government  of  said  Territory  on  the  first  Mon- 
day in  March,  eighteen  hundred  and  ninety- five,  and,  after  or- 
ganization, shall  declare  on  behalf  of  the  people  of  said  proposed 
State  that  they  adopt  the  Constitution  of  the  United  States,  where- 
upon the  said  Convention  shall  be,  and  is  hereby,  authorized  to 
form  a  Constitution  and  State  government  for  said  proposed  State. 

The  Constitution  shall  be  republican  in  form,  and  make  no 
distinction  in  civil  or  political  rights  on  account  of  race  or  color, 
except  as  to  Indians  not  taxed,  and  not  to  be  repugnant  to  the 
Constitution  of  the  United  States  and  the  principles  of  the  Declara- 
tion of  Independence.  And  said  Convention  shall  provide,  by 
ordinance  irrevocable  without  the  consent  of  the  United  States  and 
the  people  of  said  State  — 

First.  That  perfect  toleration  of  religious  sentiment  shall  be 
secured,  and  that  no  inhabitant  of  said  State  shall  ever  be  mo- 
lested in  person  or  property  on  account  of  his  or  her  mode  of 
religious  worship :  Provided,  That  polygamous  or  plural  mar- 
riages are  forever  prohibited.  .  .  . 

Fourth.  That  provision  shall  be  made  for  the  establishment  and 
maintenance  of  a  system  of  public  schools,  which  shall  be  open 
to  all  the  children  of  said  State  and  free  from  sectarian  control. 

Sec.  II.  The  schools,  colleges,  and  university  provided  for  in 
this  act,  shall  forever  remain  under  the  exclusive  control  of  said 
State,  and  no  part  of  the  proceeds  arising  from  the  sale  or  disposal 
of  any  lands  herein  granted  for  educational  purposes  or  of  the 
income  thereof,  shall  be  used  for  the  support  of  any  sectarian  or 
denominational  school,  college,  or  university. 

Sec.  19.  That  the  Constitutional  Convention  may,  by  ordi- 
nance, provide  for  the  election  of  officers  for  a  full  State  govern- 
ment, including  members  of  the  Legislature  and  Representative 
in  the  Fifty-fourth  Congress,  at  the  time  of  the  election  for  the 
ratification  or  rejection  of  the  Constitution;  but  the  said  State 
government  shall  remain  in  abeyance  until  the  State  shall  be  ad- 
mitted into  the  Union  as  proposed  by  this  act.     In  case  the  Consti- 


The  Constitutional   Basis  of  State   Government     399 

tution  of  said  State  shall  be  ratified  by  the  people,  but  not  other- 
wise, the  Legislature  thereof  may  assemble,  organize  and  elect  two 
Senators  of  the  United  States  in  the  manner  now  prescribed  by  the 
laws  of  the  United  States;  and  the  Governor  and  Secretary  of 
State  of  the  proposed  State  shall  certify  the  election  of  the  Sena- 
tors and  Representative  in  the  manner  required  by  law,  and  when 
such  State  is  admitted  into  the  Union,  as  provided  in  this  act,  the 
Senators  and  Representative  shall  be  entitled  to  be  admitted  to 
seats  in  Congress,  and  to  all  rights  and  privileges  of  Senators  and 
Representatives  of  other  States  in  the  Congress  of  the  United 
States;  and  the  State  government  formed  in  pursuance  of  said 
Constitution  as  provided  by  the  Constitutional  Convention,  shall 
proceed  to  exercise  all  the  functions  of  State  officers ;  and  all  laws 
in  force  made  by  said  Territory  at  the  time  of  its  admission  into 
the  Union  shall  be  in  force  in  said  State,  except  as  modified  or 
changed  by  this  act  or  by  the  Constitution  of  the  State;  and  the 
laws  of  the  United  States  shall  have  the  same  force  and  effect 
within  the  said  State  as  elsewhere  within  the  United  States.  .  .  . 

162.   Suffrage  Qualifications  in  the  State  of  New  York 

The  constitution  of  the  state  of  New  York  prescribes  the  follow- 
ing qualifications  for  voters  and  lays  down  the  fundamental  con- 
ditions under  which  the  rights  of  the  suffrage  must  be  exercised. 

Article  II 

Section  i.  Every  male  citizen  of  the  age  of  twenty-one  years,  Qualifica- 
who  shall  have  been  a  citizen  for  ninety  days,  and  an  inhabitant  voters, 
of  this  State  one  year  next  preceding  an  election,  and  for  the  last 
four  months  a  resident  of  the  county,  and  for  the  last  thirty  days 
a  resident  of  the  election  district  in  which  he  may  offer  his  vote, 
shall  be  entitled  to  vote  at  such  election  in  the  election  district 
of  which  he  shall  at  the  time  be  a  resident,  and  not  elsewhere,  for 
all  officers  that  now  are  or  hereafter  may  be  elective  by  the  people, 
and  upon  all  questions  which  may  be  submitted  to  a  vote  of  the 


400 


American   Government  and   Politics 


Persons 
excluded 
from  the 
suffrage. 


Residence 
not  affected 
by  certain 
occupations. 


people,  provided  that  in  time  of  war  no  elector  in  the  actual  mili- 
tary service  of  the  State,  or  of  the  United  States,  in  the  army  or 
navy  thereof,  shall  be  deprived  of  his  vote  by  reason  of  his  absence 
from  such  election  district;  and  the  Legislature  shall  have  power 
to  provide  the  manner  in  which  and  the  time  and  place  at  which 
such  absent  electors  may  vote,  and  for  the  return  and  canvass  of 
their  votes  in  the  election  districts  in  which  they  respectively 
reside. 

§  2.  No  person  who  shall  receive,  accept,  or  offer  to  receive, 
or  pay,  offer  or  promise  to  pay,  contribute,  offer  or  promise  to 
contribute  to  another,  to  be  paid  or  used,  any  money  or  other  valu- 
able thing  as  a  compensation  or  reward  for  the  giving  or  withholding 
a  vote  at  an  election,  or  who  shall  make  any  promise  to  influence 
the  giving  or  withholding  any  such  vote,  or  who  shall  make  or  be- 
come directly  or  indirectly  interested  in  any  bet  or  wager  depend- 
ing upon  the  result  of  any  election,  shall  vote  at  such  election; 
and  upon  challenge  for  such  cause,  the  person  so  challenged,  be- 
fore the  officers  authorized  for  that  purpose  shall  receive  his  vote, 
shall  swear  or  affirm  before  such  officers  that  he  has  not  received 
or  offered,  does  not  expect  to  receive,  has  not  paid,  offered  or 
promised  to  pay,  contributed,  offered  or  promised  to  contribute  to 
another,  to  be  paid  or  used,  any  money  or  other  valuable  thing  as  a 
compensation  or  reward  for  the  giving  or  withholding  a  vote  at  such 
election,  and  has  not  made  any  promise  to  influence  the  giving  or 
withholding  of  any  such  vote,  nor  made  or  become  directly  or  in- 
directly interested  in  any  bet  or  wager  depending  upon  the  result  of 
such  election.  The  Legislature  shall  enact  laws  excluding  from 
the  right  of  suffrage  all  persons  convicted  of  bribery  or  any  in- 
famous crime. 

§  3.  For  the  purpose  of  voting,  no  person  shall  be  deemed  to 
have  gained  or  lost  a  residence,  by  reason  of  his  presence  or  ab- 
sence, while  employed  in  the  service  of  the  United  States;  nor 
while  engaged  in  the  navigation  of  the  waters  of  this  State,  or  of 
the  United  States,  or  of  the  high  seas ;  nor  while  a  student  of  any 
seminar)'  of  learning;    nor  while  kept  at  any  almshouse,  or  other 


The  Constitutional   Basis  of  State  Government     401 

asylum,  or  institution  wholly  or  partly  supported  at  public  expense 
or  by  charity;    nor  while  confined  in  any  public  prison. 

§  4.  Laws  shall  be  made  for  ascertaining,  by  proper  proofs,  the  Registration 
citizens  who  shall  be  entitled  to  the  right  of  suffrage  hereby  estab-  ^aws 
lished,  and  for  the  registration  of  voters ;  which  registration  shall 
be  completed  at  least  ten  days  before  each  election.  Such  regis- 
tration shall  not  be  required  for  town  and  village  elections  except 
by  express  provision  of  law.  In  cities  and  villages  having  five 
thousand  inhabitants  or  more,  according  to  the  last  preceding 
state  enumeration  of  inhabitants,  voters  shall  be  registered  upon 
personal  application  only;  but  voters  not  residing  in  such  cities 
or  villages  shall  not  be  required  to  apply  in  person  for  registration 
at  the  first  meeting  of  the  officers  having  charge  of  the  registry  of 
voters. 

§  5.  All  elections  by  the  citizens,  except  for  such  town  officers 
as  may  by  law  be  directed  to  be  otherwise  chosen,  shall  be  by  bal- 
lot, or  by  such  other  method  as  may  be  prescribed  by  law,  provided 
that  secrecy  in  voting  be  preserved. 

§  6.  AH  laws  creating,  regulating  or  affecting  boards  of  officers  Bi-partisan 
charged  with  the  duty  of  registering  voters,  or  of  distributing  bal- 
lots at  the  polls  to  voters,  or  of  receiving,  recording  or  counting 
votes  at  elections,  shall  secure  equal  representation  of  the  two 
political  parties  which,  at  the  general  election  next  preceding  that 
for  which  such  boards  or  officers  are  to  serve,  cast  the  highest  and 
the  next  highest  number  of  votes.  All  such  boards  and  officers 
shall  be  appointed  or  elected  in  such  manner,  and  upon  the  nomi- 
nation of  such  representatives  of  said  parties  respectively,  as  the 
Legislature  may  direct.  Existing  laws  on  this  subject  shall  con- 
tinue until  the  Legislature  shall  otherwise  provide.  This  section 
shall  not  apply  to  town  meetings,  or  to  village  elections. 


boards. 


163.    The  Exclusion  of  Negroes  from  the  Suffrage 

This  section  from  the  Virginia  constitution  of  1902  illustrates 
some  of  the  many  ways  which  have  been  devised  in  Southern 
states  to  exclude  most  of  the  negroes  from  the  suffrage  without 


402 


American   Government  and   Politics 


at  the  same  time  disfranchising  any  considerable  number  of  white 
voters. 

There  shall  be  general  registrations  in  the  counties,  cities  and 
towns  of  the  State  during  the  years  of  nineteen  hundred  and  two 
and  nineteen  hundred  and  three  at  such  times  and  in  such  manner 
as  may  be  prescribed  by  an  ordinance  of  this  Convention.  At  such 
registrations  every  male  citizen  of  the  United  States  having  the 
qualifications  of  age  and  residence  required  in  section  Eighteen 
shall  be  entitled  to  register,  if  he  be: 

First.  A  person,  who  prior  to  the  adoption  of  this  Constitu- 
tion, served  in  time  of  war  in  the  army  or  navy  of  the  United  States, 
of  the  Confederate  States,  or  of  any  State  of  the  United  States  or 
of  the  Confederate  States ;   or. 

Second.     A  son  of  any  such  person;   or, 

Third.  A  person,  who  owns  property,  upon  which,  for  the 
year  next  preceding  that  in  which  he  offers  to  register,  state  taxes 
aggregating  at  least  one  year  have  been  paid;   or. 

Fourth.  A  person  able  to  read  any  section  of  this  Constitution 
submitted  to  him  by  the  officers  of  registration  and  to  give  a  reason- 
able explanation  of  the  same;  or,  if  unable  to  read  such  section, 
able  to  understand  and  give  a  reasonable  explanation  thereof 
when  read  to  him  by  the  officers. 

A  roll  containing  the  names  of  all  persons  thus  registered,  sworn 
to  and  certified  by  the  officers  of  registration,  shall  be  filed,  for 
record  and  preservation,  in  the  clerk's  office  of  the  circuit  court 
of  the  county,  or  the  clerk's  office  of  the  corporation  court  of  the 
city,  as  the  case  may  be.  Persons  thus  enrolled  shall  not  be  re- 
quired to  register  again,  unless  they  shall  have  ceased  to  be  resi- 
dents of  the  State,  or  become  disqualified  by  section  Twenty-three. 

At  the  close  of  the  Louisiana  constitutional  convention  of  1898, 
Hon.  Thomas  J.  Semmes,  chairman  of  the  judiciary  committee, 
made  the  following  defense  of  the  policy  of  restricting  political 
power  to  the  white  population  of  the  state. 

Mr.  President  and  Gentlemen  of  the  Convention: 

Now  we  have  gotten  through  with  our  work.     It  is  about  to  go 


The   Constitutional   Basis  of  State  Government     403 

forth  throughout  the  length  and  breadth  of  this  State  to  be  sub-  The  state  is 
mitted  to  the  criticisms  of  the  people.  This  is  the  work  of  a  Demo-  ^.j-atic  party. 
cratic  Convention.  This  is  the  work  of  the  Democratic  party  of 
the  State,  represented  by  its  selected  agents  appointed  to  do  that 
work.  If  we  have  done  any  thing  wrong,  any  thing  which  will 
involve  the  dissolution  or  disintegration  or  defeat  of  the  Demo- 
cratic party,  then  we  ought  to  be  condemned.  It  has  been  stated 
in  some  quarters  that  we  have  been  actuated  to  a  certain  extent 
by  party  spirit.  Granted.  What  of  it?  What  is  the  State?  It 
is  the  Democratic  party.  (Applause.)  What  are  the  people  of 
the  State?  They  are  the  Democracy  of  the  State,  and  when  you 
ehminate  the  Democratic  party  or  the  Democracy  of  the  State 
from  the  State,  what  is  there  left  but  that  which  we  came  here  to 
suppress?  I  don't  allude  to  the  fragments  of  what  is  called  the 
Republican  party.  We  met  here  to  establish  the  supremacy  of 
the  white  race,  and  the  white  race  constitutes  the  Democratic 
party  of  this  State.  There  is,  therefore,  in  my  judgment,  no 
separation  whatever  between  the  interests  of  the  State  and  those 
of  the  Democratic  party,  and  if  we  are  to  be  subjected  to  criticism 
because  our  ordinances  may  have  been  colored,  with  the  view,  in 
some  instances,  of  promoting  the  interests  of  the  Democratic 
party,  as  those  interests  are  not  separated  from  the  State,  I  feel 
no  hesitancy  in  saying  that  we  have  done  no  injury  to  the  State. 

It  is  said  that  we  sought  to  establish  our  party  in  power.     Wher-   The  Demo- 

,.  .      ,  .  .         ,        ,        .  Ill     cratic  party 

ever  there  were  political  questions  involved,  of  course,  we  looked  mustmain- 
to  the  interests  of  the  party,  because  they  are  the  interests  of  the  tain  ascen- 
State.  Whoever  heard  of  a  poHtical  party  being  in  the  ascendancy, 
and  in  power  and  undertaking  to  do  any  act  to  remove  that  as- 
cendancy or  to  impair  their  power?  Look  throughout  the  nations 
of  Europe.  In  all  of  their  political  matters;  in  all  of  their  states- 
manship; those  who  are  in  power  seek  to  maintain  it,  and,  with 
that  power  to  promote  the  interests  of  the  State  which  they  govern. 
If  it  is  so  as  to  nations,  it  is  so  as  to  parties.  Does  the  Republican 
party  throughout  the  United  States  ever  do  any  act  without  look- 
ing to  the  interests  of  the  party,  as  well  as  to  the  interests  of  the 


404 


American  Government  and   Politics 


nation?  And  have  they  not  remained  in  the  ascendancy  for 
years?  Do  we,  who  have  obtained  the  ascendancy  but  recently 
in  this  State,  wish  the  Democratic  party  to  do  any  act  by  which 
its  ascendancy  shall  be  impaired  ?     It  is  absolutely  absurd. 

Now  then,  what  have  we  done?  is  the  question.  Our  mission 
was,  in  the  first  place,  to  establish  the  supremacy  of  the  white 
race  in  this  State  to  the  extent  to  which  it  could  be  legally  and 
constitutionally  done,  and  what  has  our  ordinance  on  suffrage, 
the  constitutional  means  by  which  we  hope  to  maintain  that  as- 
cendancy, done  ?  We  have  established  throughout  the  State  white 
manhood  suffrage.  A  great  cry  went  out  that  there  should  be  a 
poll  tax;  that  there  should  be  an  educational  test ;  that  as  a  quali- 
fication for  a  voter,  he  should  be  a  property  owner.  We  have  in 
the  ordinance  established  those  qualifications  which  are  necessary 
to  be  possessed  in  order  to  entitle  these  citizens  to  vote.  .  .  . 

But  a  hue  and  cry  has  been  raised  by  people  who  are  entirely 
ignorant  of  the  fact  which  we  have  shown,  against  what  is  called 
section  5  of  the  ordinance  on  suffrage.  Now,  what  is  section  5  ? 
Very  few  people  know  anything  about  it.  Very  few  people  under- 
stand its  effects.  They  have  taken  their  ideas  from  outside  criti- 
cism and  suppose  that  we  have  committed  some  very  great  wrong. 
I  repeat,  what  is  section  5  ?  It  is  a  declaration  on  the  part  of  this 
Convention,  that  no  white  man  in  this  State  —  that's  the  effect 
but  not  the  language  —  that  no  white  man  in  this  State  who  has 
heretofore  exercised  the  right  of  suffrage  shall  be  deprived  of 
it,  whether  or  not  he  can  read  or  write,  or  whether  he  possesses  the 
property  qualification.  That  is  the  meaning  of  it;  nothing  more 
and  nothing  less.  It  declares  that  every  white  man  between  now 
and  the  ist  day  of  September  next,  although  he  may  not  be  able 
to  read  and  write,  although  he  does  not  possess  the  property  quali- 
fication, may,  notwithstanding,  if  he  register  himself  pursuant 
to  this  ordinance  of  the  Constitution,  be  thereafter  entitled  to 
vote.  ... 

Now,  why  was  this  exception  made?  Because,  and  I  am 
ashamed  to  say  it,  Louisiana  is  one  of  the  most  illiterate  States 


The  Constitutional   Basis   of  State   Government     405 

in  the  Union.  It  is  more  illiterate  than  any  other  State  except 
North  CaroHna.  We,  therefore,  have  in  this  State  a  large  white 
population  whose  right  to  vote  would  have  been  stricken  down 
but  for  the  operation  of  section  5.  And  all  of  these  men  had  aided 
the  white  people  of  the  State  to  wrest  from  the  hands  of  the  Re- 
publican party,  composed  almost  exclusively  of  negroes,  the  power  • 
which,  backed  by  Federal  bayonets,  they  had  exercised  for  many 
years.  Now  can  we  go  to  them,  these  men  who  stood  side  by 
side  with  us  in  the  dark  days  of  reconstruction  and  say  to  them 
that  a  convention  of  Louisianians  has  deprived  them  of  the  right 
to  vote  ?  Could  we  face  these  men  who  have  always  been  Demo- 
crats; who  have  always  aided  us  in  achieving  the  ascendancy  of 
the  Democratic  party  in  this  State  with  such  a  record  as  that  ? 

164.   Arguments  on  Woman's  Suffrage 

The  c^uestion  of  woman's  suffrage  was  debated  at  length  in 
the  New  York  constitutional  convention  of  1894,  and  in  the  course 
of  the  discussion,  Mr.  Hirschberg  made  the  following  argument 
against  granting  the  vote  to  women. 

Now,  Mr.  President,  I  have  listened  to  the  speeches  which  have   Granting  the 

,  1   !•  1   1  1         1  r     1  •  1  suffrage  an 

been  delivered  here  by  the  supporters  or  this  movement,  and  on  injury  to  the 
the  merits  of  the  question  remain  unconvinced.  The  burden  of  state  and  to 
the  case  rests  with  those  who  would  disturb  the  existing  order  of 
things,  and  to  my  mind,  nothing  has  been  urged  by  them  which 
should  carry  conviction.  There  has  been  considerable  inflamma- 
tory declamation,  a  great  deal  of  emotional  sentiment,  some  rhetori- 
cal denunciation,  a  little  good-natured  poetical  and  trenchant 
buffoonery,  but  of  pure  and  powerful  argument  calculated  to  satisfy 
the  sober  judgment  that  the  State  is  rif:)e  for  female  government 
and  control,  there  has  been  nothing.  No  advocate  of  the  measure 
has  demonstrated  tliat  active  participation  in  the  affairs  of  the 
State  can  be  assumed  at  this  time  by  our  female  citizens  without 
injury  to  both.  Until  that  is  done  —  until  it  is  shown  that  woman 
may  become  a  politician  without  losing  something  of  the  precious 
charm  of  her  personality,  and  that  the  State  may  exact  her  services 


4o6 


American   Government  and   Politics 


in  that  capacity  without  imperilling  its  stability  and  tranquillity, 
it  is  surely  the  conservative  course  of  wisdom  to  retain  the  existing 
conditions  under  which  we  have  achieved  our  great  happiness 
and  prosperity. 

The  present  position  of  woman  in  this  State  is  most  enviable. 
She  has  education  in  its  fullest  and  highest  development.  She 
has  the  absolute  and  unfettered  ownership  of  her  property.  Every 
avenue  of  trade  for  which  she  is  fitted  physically  is  freely  opened 
to  her  and  in  the  enjoyment  of  her  rights  she  is  protected  by  equal 
laws,  which  arc  jealously  and  even  sympathetically  enforced  for 
her  benefit.  Never  has  there  been  a  time  in  the  history  of  the 
world  when  her  happiness  has  been  so  assured,  her  advancement 
so  stimulated  and  encouraged,  or  her  independence,  within  the 
limits  of  her  physical  possibilities  and  the  necessity  of  a  continu- 
ance of  her  domestic  dominion,  so  ample  and  so  protected.  In  the 
domains  of  science,  of  art,  of  literature,  and  of  charitable  and  re- 
ligious labor,  her  position  is  that  of  a  specially-invited  and  a  favored 
worker.  And  with  it  all,  she  is  still  permitted  to  retain  her  es- 
sentially sweet  and  feminine  qualities,  which  draw  to  her  the 
respect,  the  deference  and  the  homage  of  man,  commensurate 
in  its  nature,  extent,  intensity  and  chiv^alry  with  the  ennobling 
advancement  of  our  civilization.  She  rules  at  the  fire-side,  in  the 
school-room,  by  the  bed  of  pain  and  in  the  temples  of  charity; 
and  her  powerful  influence  pervades  every  department  of  human 
endeavor,  industry  and  enlightenment,  unmixed  with  baser  matter. 
She  is  recognized  as  the  great  and  tender  ameliorating  factor  in 
every  relation  of  our  complex  life. 

I  would  not  drag  her  down  from  this  high  and  favored  position 
at  the  instigation  of  thoughtless  agitators  to  take  her  chances  in 
the  turmoil  of  (nir  political  life  without  the  clearest  evidence  that 
it  is  necessary  for  tiie  maintenance  of  her  independence  and  the 
preservation  of  her  happiness.  I  would  not  apply  the  flame  of 
partisan  strife  to  the  fuel  of  domestic  discord.  I  would  not  en- 
danger the  quiet  of  our  homes  by  an  additional  clement  of  dis- 
ruption, of  contention,  of  bitterness  and  animosity,  under  circum- 


The  Constitutional   Basis  of  State  Government     407 

stances,  in  which  if  there  is  union,  the  same  voice  would  still  be 
uttered  at  the  polls,  but  in  which,  if  there  should  be  independent 
and  differing  thought  and  action,  the  house  would  become  in- 
evitably and  forever  divided  against  itself.     (Applause.) 

Should  the  time  ever  come  when  woman  herself,  by  a  fair  pre-   Conditions 
ponderance  in  number,  demands  the  ballot,  and  public  opinion  the  suffrage 
supports  the  demand  with  an  unmistakeable  voice  and  emphasis,   might  be 
and  should  the  time  also  come  when  party  politics  shall  be  so  ^^^"  '^ 
pure  that  the  presence  of  woman  at  the  polls  would  not  be  incon- 
gruous, and  party  feeling  so  subdued  that  opposition  from  those 
we  love  could  be  freely  tolerated  by  our  better  natures,  the  ex- 
periment of  female  suffrage  might  possibly  be  safely  tried;    but 
until  then  let  woman  be  content  with  her  present  exalted  and  ad- 
vancing sphere;    developing  to  the  fullest  degree,  within  the  lines 
and  hmits  of  her  sexuality,  all  her  capabilities  for  the  good  of 
humanity;    rendering  her  share  to  the  sum  of  civic  happiness  in 
the    practice    of    domestic    virtues;    freed   from    the    burdens  of 
State  which  she  is  unfitted  to  endure,  either  in  its  defense  in  war 
or  in  its  police  in  peace ;   not  directly  shaping  its  policy  or  framing 
and  enforcing  its  government,  but  exercising  an  influence  both 
powerful  and  benign  in  the  education,  the  nurture  and  training  of 
its  youth ;   depending  for  her  advancement  on  the  strength  of  her 
innate  womanly  power,   and  for  her  protection  on  a  manhood 
which  has  as  yet  never  failed  her. 

This  argument  in  favor  of  granting  votes  to  women  is  taken 
from  the  long  and  eloquent  address  delivered  by  Mr.  George 
William  Curtis  before  the  New  York  constitutional  convention 
of  1867. 

I  wish  to  know,  sir,  and  I  ask  in  the  name  of  the  political  justice   On  what 
and  consistency  of  this  State,  why  it  is  that  half  of  the  adult  popula-   jo°s'cxclu- 
tion,  as  vitally  interested  in  good  government  as  the  other  half,  who  sion  rest? 
own  property,  manage  estates,  and  pay  taxes,  who  discharge  all 
the  duties  of  good  citizens  and  are  perfectly  intelligent  and  capa- 
ble, are  absolutely  deprived  of  political  power,  and  classed  with 
lunatics  and  felons.     The  boy  will  become  a  man  and  a  voter;  the 


4o8 


American   Government  and   Politics 


The  political 
influence  of 
women  at 
present. 


Does 
woman's 
work  inter- 
fere with 
voting? 


lunatic  may  emerge  from  the  cloud  and  resume  his  rights ;  the  idiot, 
plastic  under  the  tender  hand  of  modern  science,  may  be  moulded 
into  a  full  citizen;  the  criminal  whose  hand  still  drips  with  the 
blood  of  his  country  and  of  liberty  may  be  pardoned  and  restored. 
But  no  age,  no  wisdom,  no  peculiar  fitness,  no  public  service,  no 
effort,  no  desire  can  remove  from  women  this  enormous  and  ex- 
traordinary disability.  Upon  what  reasonable  grounds  does  it 
rest?  Upon  none  whatever.  It  is  contrary  to  natural  justice,  to 
the  acknowledged  and  traditional  principles  of  the  American  gov- 
ernment, and  to  the  most  enlightened  political  philosophy.  .  .  . 

Or  shall  I  be  told  that  women,  if  not  numerically  counted  at  the 
polls,  do  yet  exert  an  immense  influence  upon  politics,  and  do  not 
really  need  the  ballot?  If  this  argument  were  seriously  urged,  I 
should  suffer  my  eyes  to  rove  through  this  chamber  and  they  would 
show  the  many  honorable  gentlemen  of  reputed  political  influence. 
May  they,  therefore,  be  properly  and  justly  disfranchised?  I  ask 
the  honorable  chairman  of  the  committee  whether  he  thinks  that  a 
citizen  should  have  no  vote  because  he  has  influence?  What  gives 
influence?  Ability,  intelligence,  honesty.  Are  these  to  be  ex- 
cluded from  the  polls  ?  Is  it  only  stupidity,  ignorance,  and  rascal- 
ity which  ought  to  possess  political  power?  .  .  . 

But  I  shall  be  told,  in  the  language  of  the  report  of  the  com- 
mittee, that  the  proposition  is  openly  at  war  with  the  distribution 
of  functions  and  duties  between  the  sexes.  Translated  into 
English,  Mr.  Chairman,  this  means  that  it  is  unwomanly  to  vote. 
Well,  sir,  I  know  that  at  the  very  mention  of  the  political  rights  of 
women  there  arises  in  many  minds  a  dreadful  vision  of  a  mighty 
exodus  of  the  whole  female  world,  in  bloomers  and  spectacles,  from 
the  nursery  and  kitchen  to  the  polls.  It  seems  to  be  thought  that  if 
women  practically  took  part  in  politics,  the  home  would  instantly 
be  left  a  howling  vrilderness  of  cradles  and  a  chaos  of  undarned 
stockings  and  buttonless  shirts.  But  how  is  it  with  men?  Do 
they  desert  their  workshops,  their  plows  and  offices,  to  pass  their 
time  at  the  polls  ?  Is  it  a  credit  to  a  man  to  be  called  a  professional 
politician?     The  pursuits  of  men  in  the  world,  to  which  they  are 


The  Constitutional   Basis  of  State  Government     409 

directed  by  the  natural  aptitude  of  sex  and  to  which  they  must 
devote  their  lives,  are  as  foreign  from  poHtical  functions  as  those  of 
women.  To  take  an  extreme  case.  There  is  nothing  more  in- 
compatible with  political  duties  in  cooking  and  taking  care  of 
children  than  there  is  in  digging  ditches  or  making  shoes  or  in  any 
other  necessary  employment,  while  in  every  superior  interest  of 
society  growing  out  of  the  family  the  stake  of  women  is  not  less 
than  men,  and  their  knowledge  is  greater.  .  .  . 

When  the  committee  declare  that  voting  is  at  war  with  the  dis-   ^^^  woman 
.  ->       A         '^^^  ^^  stake 

tnbution  of  functions  between  the  sexes,  what  do  they  mean?     Are  in  good 

not  women  as  much  interested  in  good  government  as  men?     Has  government? 

the  mother  less  at  stake  in  equal  laws  honestly  administered  than  the 

father?     There  is  fraud  in  the  legislature;   there  is  corruption  in 

ihe  courts;   there  are  hospitals  and  tenement-houses  and  prisons; 

there  are  gambling  houses  and  billiard-rooms  and  brothels;   there 

are  grog-shops  at  every  corner,  and  I  know  not  what  enormous 

proportion  of  crime  in  the  State  proceeds  from  them;    there  are 

forty  thousand  drunkards  in  the  State  and   their  hundreds  of 

thousands  of  children.     All  these  things  are  subjects  of  legislation, 

and  under  the  exclusive  legislation  of  men;    the  crime  associated 

with  all  these  things  becomes  vast  and  complicated ;  have  the  wives 

and  mothers  and  sisters  of  New  York  less  vital  interest  in  them,  less 

practical  knowledge  of  them  and  their  proper  treatment,  than  the 

husbands  and  fathers?     No  man  is  so  insane  as  to  pretend  it.     Is 

there  then  any  natural  incapacity  in  women  to  understand  politics? 

It  is  not  asserted.     Are  they  lacking  in  the  necessary  intelligence? 

But    the    moment    that    you    erect    a   standard   of    intelligence 

which  is  sufficient  to  exclude  women  as  a  sex,  that  moment  most  of 

their  amiable  fellow-citizens  in  trousers  would  be  disfranchised. 

Is  it  that  they  ought  not  to  go  to  public  political  meetings?     But 

we  earnestly  invite  them.     Or  that  they  should  not  go  to  the  polls? 

Some  polls,  I  al'ow,  in  the  larger  cities,  are  dirty  and  dangerous 

places,  and  those  it  is  the  duty  of  the  police  to  reform.     But  no 

decent  man  wishes  to  vote  in  a  grog-shop,  or  to  have  his  head 

broken  while  he  is  doing  it ;  while  the  mere  act  of  dropping  a  ballot 


41  o  American   Government  and   Politics 

in  a  box  is  about  the  simplest,  shortest,  and  cleanest  that  can  be 
done. 

Last  winter  Senator  Frelinghuysen,  repeating,  I  am  sure  thought- 
lessly, the  common  rhetoric  of  the  question,  spoke  of  the  high  and 
holy  mission  of  women.  But  if  people  with  a  high  and  holy  mis- 
sion may  innocently  sit  bare-necked  in  hot  theatres  to  be  studied 
through  pocket  telescopes  until  midnight  by  anyone  who  chooses, 
how  can  their  high  and  holy  mission  be  harmed  by  their  quietly 
dropping  a  ballot  in  a  box?  But  if  women  vote,  they  must  sit  on 
juries.  Why  not?  Nothing  is  plainer  than  that  thousands  of 
women  who  are  tried  every  year  as  criminals  are  not  tried  by  their 
peers.  And  if  a  woman  is  bad  enough  to  commit  a  heinous  crime, 
must  we  absurdly  assume  that  women  are  too  good  to  know  that 
there  is  such  a  crime  ?  If  they  may  not  sit  on  juries,  certainly  they, 
ought  not  to  be  witnesses. 


CHAPTER  XXIII 

POPULAR  CONTROL  IN  STATE  GOVERNMENTS 

165.    The  New  York  Amendment  System 

Every  well-planned  state  constitution  should  provide  a  definite 
process  by  which  the  voters  may  amend  or  reconstruct  their 
fundamental  institutions.  The  systeni  created  by  Article  XIV 
of  the  New  York  constitution  is  regarded  by  many  publicists 
as  one  of  the  most  complete  and  satisfactory  to  be  found  any- 
where in  the  United  States.^ 

Section  i.  Any  amendment  or  amendments  to  this  constitution  The  ordi- 
may  be  proposed  in  the  Senate  and  Assembly ;  and  if  the  same  shall  ^"t^^  '"  d^° 
be  agreed  to  by  a  majority  of  the  members  elected  to  each  of  the  mcnt. 
two  houses,  such  proposed  amendment  or  amendments  shall  be 
entered  on  their  journals,  and  the  y^as  and  nays  taken  thereon,  and 
referred  to  the  Legislature  to  be  chosen  at  the  next  general  election 
of  senators,  and  shall  be  published  for  three  months  previous  to  the 
time  of  making  such  choice;  and  if  in  the  Legislature  so  next 
chosen,  as  aforesaid,  such  proposed  amendment  or  amendments 
shall  be  agreed  to  by  a  majority  of  all  the  members  elected  to  each 
house,  then  it  shall  be  the  duty  of  the  Legislature  to  submit  such 
proposed  amendment  or  amendments  to  the  people  for  approval  in 
such  manner  and  at  such  times  as  the  Legislature  shall  prescribe; 
and  if  the  people  shall  approve  and  ratify  such  amendment  or 
amendments  by  a  majority  of  the  electors  voting  thereon,  such 
amendment  or  amendments  shall  become  a  part  of  the  Constitution 
from  and  after  the  first  day  of  January  next  after  such  ajjproval. 

§  2.  At  the  general  election  to  be  held  in  the  year  one  thousand 
nine  hundred  and  sixteen,  and  every  twentieth  year  thereafter,  and 

'  See  the  valuable  article  by  Professor  J.  W.  Garner  in  The  American  Political 
Science  Review  for  February,  1907. 

411 


412 


American  Government  and   Politics 


Amendment 
by  a  con- 
stitutional 
convention. 


Ratification. 


also  at  such  times  as  the  Legislature  may  by  law  provide,  the  ques- 
tion, "Shall  there  be  a  convention  to  revise  the  Constitution  and 
amend  the  same?"  shall  be  decided  by  the  electors  of  the  State; 
and  in  case  a  majority  of  the  electors  voting  thereon  shall  decide  in 
favor  of  a  convention  for  such  purpose,  the  electors  of  every  senate 
district  of  the  State,  as  then  organized,  shall  elect  three  delegates  at 
the  next  ensuing  general  election  at  which  members  of  the  As- 
sembly shall  be  chosen,  and  the  electors  of  the  State  voting  at  the 
same  election  shall  elect  fifteen  delcgates-at-large.  The  delegates 
so  elected  shall  convene  at  the  capitol  on  the  first  Tuesday  of  April 
next  ensuing  after  their  election,  and  shall  continue  their  session 
until  the  business  of  such  convention  shall  have  been  completed. 
Every  delegate  shall  receive  for  his  services  the  same  compensation 
and  the  same  mileage  as  shall  then  be  annually  payable  to  the  mem- 
bers of  the  Assembly.  A  majority  of  the  convention  shall  con- 
stitute a  cjuorum  for  the  transaction  of  business,  and  no  amend- 
ment to  the  Constitution  shall  be  submitted  for  approval  to  the 
electors  as  hereinafter  provided,  unless  by  the  assent  of  a  majority 
of  all  the  delegates  elected  to  the  convention,  the  yeas  and  nays 
being  entered  on  the  journal  to  be  kept.  The  convention  shall 
have  the  power  to  appoint  such  officers,  employes  and  assistants 
as  it  may  deem  necessary  and  fix  their  compensation,  and  to  pro- 
vide for  the  printing  of  its  documents,  journal  and  proceedings. 
The  convention  shall  determine  the  rules  of  its  own  proceedings, 
choose  its  own  officers,  and  be  the  judge  of  the  election,  returns  and 
qualifications  of  its  members.  In  case  of  a  vacancy,  by  death, 
resignation  or  other  cause,  of  any  district  delegate  elected  to  the  con- 
vention, such  vacancy  shall  be  filled  by  a  vote  of  the  remaining  dele- 
gates representing  the  district  in  which  such  vacancy  occurs.  If 
such  vacancy  occurs  in  the  office  of  a  delegate-at-large,  such  vacancy 
shall  be  filled  by  a  vote  of  the  remaining  delegates-at-large. 

Any  proposed  constitution  or  constitutional  amendment  which 
shall  have  been  adopted  by  such  convention,  shall  be  submitted 
to  a  vote  of  the  electors  of  the  State  at  the  time  and  in  the  manner 
provided  by  such  convention,  at  an  election  which  shall  be  held  not 


Popular  Control  in  State  Governments       413 

less  than  six  weeks  after  the  adjournment  of  such  convention. 
Upon  the  approval  of  such  constitution  or  constitutional  amend- 
ments, in  the  manner  provided  in  the  last  preceding  section,  such 
constitution  or  constitutional  amendment,  shall  go  into  effect  on 
the  first  day  of  January  next  after  such  approval. 

§  3.  Any  amendment  proposed  by  a  constitutional  convention  Coincident 
relating  to  the  same  subject  as  an  amendment  proposed  by  the  ments. 
Legislature,  coincidently  submitted  to  the  people  for  approval  at 
the  general  election  held  in  the  year  one  thousand  eight  hundred 
and  ninety-four,  or  at  any  subsequent  election  shall,  if  approved, 
be  deemed  to  supersede  the  amendment  so  proposed  by  the  Legis- 
lature. 

166.    The  Initiative  and  Referendum  in  Oklahoma 

These  sections  from  the  recent  constitution  of  Oklahoma  give 
the  broad  outlines  of  the  system  of  initiative  and  referendum  es- 
tablished in  that  state :  — 

Section  i.  The  legislative  authority  of  the  State  shall  be  vested  Reservation 
in  a  legislature,  consisting  of  a  senate  and  a  house  of  representa-  "he^eo^ple? 
tives;  but  the  people  reserve  to  themselves  the  power  to  propose 
laws  and  amendments  to  the  constitution  and  to  enact  or  reject 
the  same  at  the  polls  independent  of  the  legislature,  and  also  re- 
serve power  at  their  own  option  to  approve  or  reject  at  the  polls 
any  act  of  the  legislature. 

Sec.  2.  The  first  power  reserved  by  the  people  is  the  initiative,  Theinitia- 
and  eight  per  centum  of  the  legal  voters  shall  have  the  right  to  pro-  erendum. 
pose  any  legislative  measure,  and  fifteen  per  centum  of  the  legal 
voters  shall  have  the  right  to  propose  amendments  to  the  Consti- 
tution by  petition,  and  every  such  petition  shall  include  the  full 
text  of  the  measure  so  proposed.  The  second  power  is  the  refer- 
endum, and  it  may  be  ordered  (except  as  to  laws  necessary  for  the 
immediate  presentation  of  the  public  peace,  health,  or  safety), 
either  by  petition  signed  by  five  per  centum  of  the  legal  voters  or  by 
the  Legislature  as  other  bills  are  enacted.  The  ratio  and  per  cen- 
tum of  legal  voters  hereinbefore  stated  shall  be  based  upon  the 


414  American  Government  and  Politics 

I 

total  number  of  votes  cast  at  the  last  general  election  for  the  State 
oflSce  receiving  the  highest  number  of  votes  at  such  election. 

Sec.  3.  Referendum  petitions  shall  be  filed  with  the  Secretary 
of  State  not  more  than  ninety  days  after  the  final  adjournment  of 
the  session  of  the  Legislature  which  passed  the  bill  on  which  the 
referendum  is  demanded.  The  veto  power  of  the  Governor  shall 
not  extend  to  measures  voted  on  by  the  people.  All  elections  on 
measures  referred  to  the  people  of  the  State  shall  be  had  at  the 
next  election  held  throughout  the  State,  except  when  the  Legisla- 
ture or  the  Governor  shall  order  a  special  election  for  the  express 
purjjose  of  making  such  reference.  Any  measure  referred  to  the 
people  by  the  initiative  shall  take  effect  and  be  in  force  when  it 
shall  have  been  approved  by  a  majority  of  the  votes  cast  in  such 
election.  Any  measure  referred  to  the  people  by  the  referendum 
shall  take  effect  and  be  in  force  when  it  shall  have  been  approved 
by  a  majority  of  the  votes  cast  thereon  and  not  otherwise. 

The  style  of  all  bills  shall  be :  "  Be  It  Enacted  by  the  People 
of  the  State  of  Oklahoma." 

Petitions  and  orders  for  the  initiative  and  for  the  referendum 
shall  be  filed  with  the  Secretary  of  State  and  addressed  to  the  Gov- 
ernor of  the  State,  who  shall  submit  the  same  to  the  people.  The 
Legislature  shall  make  suitable  provisions  for  carrying  into  effect 
the  provisions  of  this  article. 

Sec.  4.  The  referendum  may  be  demanded  by  the  people 
against  one  or  more  items,  sections,  or  parts  of  any  act  of  the 
Legislature  in  the  same  manner  in  which  such  power  may  be  exer- 
cised against  a  complete  act.  The  filing  of  a  referendum  petition 
against  one  or  more  items,  sections,  or  parts  of  an  act  shall  not 
delay  the  remainder  of  such  act  from  becoming  operative. 
Local  gov-  Sec.  5.     The  powers  of  the  initiative  and  referendum  reserved  to 

the  people  by  this  Constitution  for  the  State  at  large,  are  hereby 
further  reserved  to  the  legal  voters  of  every  county  and  district 
therein,  as  to  all  local  legislation,  or  action,  in  the  administration  of 
county  and  district  government  in  and  for  their  respective  counties 
and  districts. 


Popular  Control   in   State  Governments       415 

The  manner  of  exercising  said  powers  shall  be  prescribed  by 
general  laws,  except  that  Boards  of  County  Commissioners  may 
provide  for  the  time  of  exercising  the  initiative  and  referendum 
powers  as  to  local  legislation  in  their  respective  counties  and  dis- 
tricts. 

The  requisite  number  of  petitioners  for  the  invocation  of  the  in- 
itiative and  referendum  in  counties  and  districts  shall  bear  twice, 
or  double,  the  ratio  to  the  whole  number  of  legal  voters  in  such 
county  or  district,  as  herein  provided  therefor  in  the  State  at  large. 

Sec.  6.  Any  measure  rejected  by  the  people,  through  the  powers 
of  the  initiative  and  referendum,  cannot  be  again  proposed  by  the 
initiative  within  three  years  thereafter  by  less  than  twenty-five  per 
centum  of  the  legal  voters. 

Sec.  7.  The  reservation  of  the  powers  of  the  initiative  and 
referendum  in  this  article  shall  not  deprive  the  Legislature  of  the 
right  to  repeal  any  law,  propose  or  pass  any  measure,  which  may  be 
consistent  with  the  Constitution  of  the  State  and  the  Constitution 
of  the  United  States. 

Sec.  8.  Laws  shall  be  provided  to  prevent  corruption  in  mak- 
ing, procuring,  and  submitting  initiative  and  referendum  petitions. 

167.   Educating  the  Voters  in  Oregon 

These  extracts  from  the  law  of  Oregon  show  how  that  state 
seeks  to  enlighten  the  voters  on  measures  submitted  to  them  under 
the  system  of  initiative  and  referendum. 

Section  5.  When  any  measure  shall  be  filed  with  the  Secretary  Preparation 
of  State  to  be  referred  to  the  people  of  the  State,  or  of  any  county  or 
district  composed  of  one  or  more  counties,  either  by  the  legislative 
assembly  or  by  the  referendum  petition,  and  when  any  measure 
shall  be  proposed  by  initiative  petition,  the  Secretary  of  State  shall 
forthwith  transmit  to  the  Attorney-General  of  the  State  a  copy 
thereof,  and  within  ten  days  thereafter  the  Attorney- General  shall 
provide  and  return  to  the  Secretary  of  State  a  ballot  title  for  said 
measure.     The  ballot  title  may  be  distinct  from  the  legislative 


of  the  ballot 
title. 


41 6  American  Government  and  Politics 

title  of  the  measure,  and  shall  express,  in  not  exceeding  one  hun- 
dred words,  the  purpose  of  the  measure.  The  ballot  title  shall  be 
printed  with  the  numbers  of  the  measure,  on  the  official  ballot.  In 
making  such  ballot  title  the  Attorney- General  shall,  to  the  best  of 
his  ability,  give  a  true  and  impartial  statement  of  the  purpose  of  the 
measure,  and  in  such  language  that  the  ballot  title  shall  not  be  in- 
tentionally an  argument,  or  likely  to  create  prejudice,  either  for  or 
against  the  measure.  .  .  . 
The  prep-  Section  8.     Not  later  than  the  first  Monday  of  the  third  month 

arguments  ^^^^  before  any  regular  general  election,  nor  later  than  thirty  days 
before  any  special  election,  at  which  any  proposed  law,  part  of  an 
act,  or  amendment  to  the  Constitution  is  to  be  submitted  to  the 
people,  the  Secretary  of  State  shall  cause  to  be  printed  in  pam- 
phlet form  a  true  copy  of  the  title  and  text  of  each  measure  to  be 
submitted,  with  the  number  and  form  in  which  the  ballot  title 
thereof  will  be  printed  on  the  official  ballot.  The  person,  com- 
mittee, or  duly  authorized  officers  of  any  organization  filing  any 
petition  for  the  initiative,  but  no  other  person  or  organization,  shall 
have  the  right  to  file  with  the  Secretary  of  State  for  printing  and 
distribution  any  argument  advocating  such  measure;  said  argu- 
ment shall  be  filed  not  later  than  the  first  Monday  of  the  fourth 
month  before  the  regular  election  at  which  the  measure  is  to  be 
voted  upon.  Any  person,  committee,  or  organization  may  file 
with  the  Secretary  of  State,  for  printing  and  distribution,  any 
arguments  they  may  desire,  opposing  any  measure,  not  later  than 
the  fourth  Monday  of  the  fourth  month  immediately  preceding 
such  election. 

Arguments  advocating  or  opposing  any  measures  referred  to  the 
people  by  the  legislative  assembly,  or  by  referendum  petition,  at  a 
regular  general  election,  shall  be  governed  by  the  same  rules  as  to 
time,  but  may  be  filed  with  the  Secretary  of  State  by  any  person, 
committee,  or  organization ;  in  the  case  of  measures  submitted  at 
a  special  election,  all  arguments  in  support  of  such  measure  at 
least  sixty  days  before  such  election.  But  in  every  case  the  person 
or  persons  offering  such  arguments  for  printing  and  distribution 


Popular  Control  in  State  Governments       417 

shall  pay  to  the  Secretary  of  State  sufficient  money  to  pay  all  the 
expenses  for  paper  and  printing  to  supply  one  copy  with  every  copy 
of  the  measure  to  be  printed  by  the  State;  and  he  shall  forthwith 
notify  the  persons  offering  the  same  of  the  amount  of  money  neces- 
sary. 

The  Secretary  of  State  shall  cause  one  copy  of  each  of  said  ar- 
guments to  be  bound  in  the  pamphlet  copy  of  the  measures  to  be 
submitted  as  herein  provided,  and  all  such  measures  and  arguments 
to  be  submitted  at  one  election  shall  be  bound  together  in  a  single 
pamphlet.  All  the  printing  shall  be  done  by  the  State,  and  the 
pages  of  said  pamphlet  shall  be  numbered  consecutively  from  one 
to  the  end.  .  .  .  The  title  page  of  every  measure  bound  in  said 
pamphlet  shall  show  its  ballot  title  and  ballot  numbers.  The  title 
page  of  each  argument  shall  show  the  measure  or  measures  it  favors 
or  opposes  and  by  what  persons  or  organization  it  is  issued.  When 
such  arguments  are  printed,  he  shall  pay  the  State  Printer  therefor 
from  the  money  deposited  with  him  and  refund  the  surplus,  if  any, 
to  the  parties  who  paid  it  to  him.  The  cost  of  printing,  binding, 
and  distributing  the  measures  proposed,  and  of  binding  and  dis- 
tributing the  arguments,  shall  be  paid  by  the  State  as  a  part  of  the 
state  printing,  it  being  intended  that  only  the  cost  of  paper  and 
printing  the  arguments  shall  be  paid  by  the  parties  presenting  the 
same,  and  they  shall  not  be  charged  any  higher  rate  for  such  work 
than  is  paid  by  the  State  for  similar  work  and  paper. 

Not  later  than  the  fifty-fifth  day  before  the  regular  general  election  Distribution 
at  which  such  measures  are  to  be  voted  upon,  the  Secretary  of  State  °  ^^""^  ^  ' 
shall  transmit  by  mail,  with  postage  fully  prepaid,  to  every  voter 
in  the  State  whose  address  he  may  have,  one  copy  of  such  pamphlet ; 
provided,  that  if  the  Secretary  shall,  at  or  about  the  same  time,  be 
mailing  any  other  pamphlet  to  every  voter,  he  may,  if  practicable, 
bind  the  matter  herein  provided  for  in  the  first  part  of  said  pamphlet, 
numbering  the  pages  of  the  entire  pamphlet  consecutively  from 
one  to  the  end,  or  he  may  enclose  the  pamphlets  under  one  cover. 
In  the  case  of  a  special  election  he  shall  mail  said  pamphlet  to  every 
voter  not  less  than  twenty  days  before  said  election. 


41 8  American   Government  and   Politics 

i68.    A  Public  Opinion  Bill 

A  modified  form  of  initiative  and  referendum  is  provided  by 
a  measure  which  has  long  been  advocated  by  many  ardent  re- 
formers in  Massachusetts :  — 

Section  I.  On  a  request  signed  by  one  thousand  voters,  asking 
for  the  submission  of  any  question  for  an  expression  of  opinion  and 
stating  the  substance  thereof,  the  secretary  of  the  Commonwealth 
shall  transmit  such  request  to  the  State  ballot  law  commission,  who 
shall  determine  if  such  question  is  one  of  public  policy,  and  if  they 
so  determine,  shall  draft  it  in  such  simple,  unequivocal,  and  ade- 
quate form  as  they  may  deem  best  suited  to  secure  a  fair  expression 
of  opinion.  Thereupon  the  secretary  shall  prepare  and  furnish 
suitable  forms,  each  to  contain  spaces  for  not  more  than  one  hun- 
dred signatures,  and  if  such  forms  shall  be  signed  by  five  thousand 
voters,  he  shall  upon  the  fulfilment  of  the  requirements  of  this  act 
place  such  question  on  the  official  ballot  to  be  used  at  the  next 
State  election.  Forms  shall  bear  the  date  on  which  they  are  issued, 
and  no  applications  made  on  forms  issued  more  than  twelve  months 
before  the  election  concerned  shall  be  received. 

Sec.  2.  Signers  of  request  for  the  issuance  of  forms  and  signers 
of  applications  shall  append  to  their  signatures  their  residence, 
with  street  and  number,  if  any,  and  shall  be  certified  as  registered 
voters  by  the  proper  registrars  of  voters.  One  of  the  signers  to  each 
paper  shall  make  oath  of  the  genuineness  of  the  signatures  thereto, 
and  a  notary  public,  justice  of  the  peace,  or  other  magistrate,  when 
taking  such  oath,  shall  satisfy  himself  that  the  person  to  whom  the 
oath  is  administered  is  the  person  signing  such  paper,  and  shall  so 
state  in  his  attestation  of  such  oath.  All  provisions  of  law  relating 
to  nomination  papers  shall  apply  to  such  requests  and  applications 
as  far  as  may  be  consistent. 

Sec.  3;  Applications  shall  be  filed  with  the  secretary  sixty  days 
before  the  election  at  which  the  questions  are  to  be  submitted. 
Not  more  than  four  questions  under  this  act  shall  be  placed  upon 
the  ballot  at  one  election,  and  they  shall  be  submitted  in  the  order 


Popular  Control  in   State  Governments       419 

in  which  the  applications  are  filed.  No  question  negatived,  and 
no  question  substantially  the  same,  shall  be  submitted  again  in  less 
than  three  years. 

169.   Arguments  for  the  Initiative  and  Referendum* 

These  passages  from  a  catechism  prepared  by  several  distin- 
guished advocates  of  the  initiative  and  referendum  sum  up  the 
leading  arguments  in  favor  of  the  system :  — 

Q.    What  is  meant  by  the  Referendum  ? 

A.  The  Referendum  means  the  referring  of  a  law  or  ordinance  Definition 
or  any  specific  question  to  the  people  for  decision  at  the  polls.  A  ^^^^^^  ^^  " 
vote  on  a  law  or  ordinance  may  be  taken,  not  for  the  purpose  of 
decision,  but  merely  to  secure  an  accurate  and  definite  expression 
of  public  opinion.  This  is  a  quasi-Referendum  or  public-opinion 
vote,  such  as  is  in  use  in  Illinois;  also  in  some  cities,  such  as 
Chicago  and  Detroit.  The  Referendum  also  means  the  right  of  the 
people  to  demand  the  submission  of  an  enactment  or  measure  to 
the  voters  for  decision ;  and  it  is  also  used  to  designate  a  statute  or 
constitutional  amendment  securing  this  right. 

Q.  Is  the  Referendum  un-American  ? 

A.    The  Referendum  is  not  un-American  unless  the  principle  of  The  referen- 

maiority-rule  or  rule  by  the  people  is  un-American.     It  is  majority-     ^"1  '^  ".°* 
■'•'__  J  f     I  i        J      un-Amencan. 

rule  that  is  important,  and  whatever  means  prove  necessary  to 
secure  it  must  be  adopted.  So  far  from  being  un-American,  the 
Referendum  is  most  emphatically  American  both  in  principle  and 
practice.  From  the  earliest  days  of  our  colonial  government  in 
New  England  the  people  not  only  voted  directly  on  specific  meas- 
ures but  practically  all  the  laws  were  made  by  direct  vote  of  the 
citizens.  This  practice  has  continued  in  unbroken  succession  so 
far  as  local  or  town  government  is  concerned,  but  city  and  state 
government  has  lost  its  originil  character.  As  the  growth  of  num- 
bers made  it  necessary  to  rely  more  and  more  on  representatives, 
the  direct  vote  of  the  people  was  lost,  because  no  one  tliought  of 
any  way  in  which  it  could  be  retained.     But  now  that  we  have  a 


420 


American   Government  and   Politics 


plan  whereby  the  direct  vote  can  be  taken  without  an  assembly  of 
the  people,  it  is  possible  to  go  back  to  the  original  American  system 
of  actual  popular  sovereignty.  From  the  standpoint  of  principle, 
no  government  is  American  unless  it  is  a  government  by  and  for  the 
people;  and  no  government  can  be  a  government  by  and  for  the 
people  where  the  will  of  a  small  body  of  so-called  representatives 
can  override  or  disregard  the  will  of  the  people. 

Q.  Has  it  made  frequent  elections  necessary,  thus  greatly  in- 
creasing the  cost? 

A.  Instead  of  making  elections  more  frequent  and  thus  increas- 
ing taxation,  the  experience  of  the  Swiss  is  the  reverse.  It  is  not 
worth  while  for  politicians  to  attempt  to  squander  the  people's  re- 
sources or  for  private  interests  to  bribe  them  to  do  so  when  the 
people  have  it  in  their  power  upon  petition  of  a  small  minority,  to 
submit  any  measure  passed  by  a  legislature  to  a  direct  vote  of  the 
people  and  veto  it  if  a  majority  so  votes.  This  removes  from  the 
legislators  the  temptation  to  corruption.  The  Governor  of  South 
Dakota,  a  year  or  two  after  the  constitutional  Direct-Legislation 
amendment  went  into  effect,  said:  "Since  this  Referendum  law 
went  into  effect  we  have  had  no  charter-mongers  or  railway  specula- 
tors, no  wild-cat  schemes  submitted  to  our  legislature.  Formerly 
our  time  was  occupied  by  speculative  schemes  of  one  kind  or  an- 
other, but  since  the  Referendum  has  been  made  a  part  of  the  con- 
stitution these  people  do  not  press  their  schemes,  and  hence  there 
is  no  necessity  for  having  recourse  to  the  Referendum." 

Q.  Does  it  take  from  the  people's  representatives  any  just  rights 
that  belong  to  them,  or  in  any  way  limit  their  legitimate  exercise  of 
power  ? 

A.  The  Referendum  takes  from  the  people's  representatives  no 
power  that  justly  belongs  to  them.  The  legislators  are  the  agents 
and  servants  of  the  people,  not  their  masters.  No  true  representa- 
tive has  a  r'ght  or  a  desire  to  do  anything  his  principal  does  not 
wish  to  have  done,  or  to  refuse  to  do  anything  his  principal  desires 
to  have  done.  The  Referendum  merely  prevents  the  representa- 
tives from  becoming  mis-representatives  by  doing,  through  igno- 


Popular  Control   in   State   Gov^ernments       421 

ranee  or  dereliction,  what  the  people  do  not  want,  or  neglecting  to 
do  what  the  people  do  want.  A  legislative  body  may  depart  from 
the  people's  will  because  it  does  not  know  what  the  people's 
will  is,  or  because  the  pressure  of  private  or  personal  interest,  con- 
trary to  the  public  interest,  overcomes  the  legislators'  allegiance 
to  the  people's  will.  In  either  case  the  Referendum  is  the 
remedy  and  the  only  complete  remedy ;  the  only  means  whereby 
real  government  by  the  people  may  be  made  continuous  and 
effective. 

Q.  Does  it  destroy  "  all  the  safeguards  of  debate  and  discussion, 
of  deliberate  action,  of  amendment  or  compromise"? 

A.  No.  The  advantages  of  the  present  legislative  system,  —  its 
compactness,  experience,  power  of  work,  etc.,  are  retained  with  the 
Referendum,  but  the  evils  of  the  present  system,  —  its  haste,  com- 
plexity, corruption  and  violations  of  the  will  of  the  people,  are 
eliminated.  Under  the  Referendum  the  city  or  state  has  its  body 
of  legal  experts,  trained  advisers,  and  experienced  legislators,  of 
course,  and  they  continue  to  do  most  of  the  law-making,  but  their 
power  to  do  wrong  or  stop  progress,  their  power  to  do  as  they 
please  in  spite  of  the  people  is  removed.  The  state  that  adopts  the 
Referendum  has  the  service  of  its  legislators,  without  being  subject 
to  their  mastery.  If  the  representatives  act  as  the  people  wish,  their 
action  is  not  disturbed.  If  they  act  against  the  people's  wish,  the 
people  have  a  prompt  and  effective  veto  by  which  they  can  stop  a 
departure  from  their  will  before  any  damage  is  done.  This  is  a 
much-needed  safeguard  of  popular  institutions.  The  Referendum 
raises  the  legislators  to  their  old  position  of  councillors  or  advisers 
to  the  people  and  places  them  above  suspicion,  because  they  can- 
not sell  out.  It  also  gives  them  an  independence  they  do  not  now 
have. 

Q.    Why  is  it  imperatively  demanded  to-day? 

A.     The  Referendum  is  imperatively  demanded  because  there    Referendum 

...  •  1       •  '  r    1      1  *"  control 

has  ansen  m  our  midst  in  recent  years  a  powerful  plutocracy  com-   )„)j^-t,^  jmj 
posed  of  the  great  public-service  magnates,  the  trust  chieftains  and   corporations. 
other  princes  of  privilege  who  have  succeeded  in  placing  in  posi- 


422 


American  Government  and   Politics 


tions  of  leadership  political  bosses  that  are  susceptible  to  the  in- 
fluence of  corrupt  wealth.  These  men  direct  the  political  machine 
whose  manipulators  are  liberally  supplied  with  the  ill-gotten  wealth 
furnished  by  privileged  interests  for  future  favors  and  for  protec- 
tion against  legislation  that  might  be  enacted  in  the  interests  of  the 
people.  Through  this  unholy  alliance  of  corporate  wealth  with 
political  bosses  and  money-controlled  machines,  incorruptible  leg- 
islators and  officials  arc  driven  into  retirement  and  their  places 
filled  with  creatures  beholden  to  corporate  wealth  and  monopoly 
interests.  Against  these  evils  the  Referendum  is  a  powerful 
weapon.  It  brings  the  government  back  to  the  people,  de- 
stroying corruption  and  the  mastership  of  the  many  by  the 
few. 

Q.     What  is  the  popular  Initiative? 

A.  The  popular  Initiative  is  the  right  of  a  certain  percentage  of 
the  voters,  usually  five  to  ten  per  cent.,  to  propose  a  law,  ordinance, 
or  constitutional  amendment  for  action  by  the  legislature  or  de- 
cision at  the  polls  or  both.  Under  what  is  considered  by  many  as 
the  proper  form,  the  measure  which  is  petitioned  by  the  requisite 
number  of  voters  goes  to  the  proper  legislative  body  which  may 
adopt  or  reject  it,  amend  it,  pass  a  substitute,  or  refrain  from  any 
action  in  reference  to  it.  If  the  legislative  body  does  not  enact  the 
measure  as  petitioned  for,  or  if  it  takes  adverse  action  in  any  form, 
the  said  measure  together  with  the  amendment,  substitute  or 
other  action  of  the  legislative  body  goes  to  the  electorate  for  final 
decision  at  the  polls. 

Q.  Would  the  Initiative  result  in  the  demand  for  a  number  of 
unnecessary  or  foolish  laws  ? 

A.  Experience  in  Switzerland  and  in  our  Western  States  proves 
that  legislation  under  the  Initiative  is  on  the  whole  wise  and  ccm- 
servative.  Any  one  who  will  take  the  trouble  year  after  year  to 
read  the  statutes  passed  by  our  legislatures  will  find  it  difficult  to 
imagine  how  any  system  likely  to  be  adopted  in  a  free  country 
could  possibly  produce  more  foolish  or  vicious  laws  than  the  sys- 
tem of  law-making  by  final  vote  of  a  few  men,  largely  under  the 


Popular  Control  in   State   Governments       423 

influence  of  private  and  special  interests,  now  in  operation  in  this 
country.  In  the  long  run  the  judgment  of  a  free  people  is  likely  to 
be  superior  to  the  judgment  of  any  small  legislative,  body.  When 
men  follow  their  errors  or  private  interests  they  diverge.  A  few 
men  may  go  together  in  allegiance  to  some  error  or  private  interest, 
but  when  the  people  as  a  whole  unite  it  must  be  by  a  cancellation 
of  their  errors  and  private  interests.  In  large  communities  as  a 
rule  it  is  only  on  the  basis  of  truth  and  right  that  the  people  can  get 
together  in  controlling  numbers.  Moreover,  the  inertia  of  man- 
kind and  the  effort  and  cost  necessary  to  secure  the  requisite  per- 
centage of  signatures  to  the  petition  render  the  Initiative  essentially 
conservative.  People  will  not  ask  for  the  passage  of  a  law  unless 
they  are  convinced  that  it  is  needed.  This  has  been  proved  to  be 
the  case  wherever  the  Initiative  has  been  employed.  But  the  pos- 
session of  this  right,  together  with  the  Referendum,  has  practically 
led  to  the  disappearance  of  corrupt  lobbies  and  other  sinister  in- 
fluences that  have  long  offered  great  temptations  to  the  people's 
representatives  and  in  many  instances  have  rendered  impossible 
the  enactment  of  needed  legislation  while  forcing  to  a  successful 
issue  laws  that  were  not  desired  by  the  people  and  were  inimical  to 
their  interests. 

Q.    What  classes  favor  the  Initiative? 

A.   Those   who   desire   real  popular  sovereignty;    those  who  Theinitia- 
desire  "that  the  legislators  elected  by  the  people  shall  be  repre-   mentally 
sentatives,  and  not  misrepresentatives ;    those  who  desire  to  ter-  democratic, 
minate  the  private  monopoly  of  law-making;    those  who  desire 
to  kill  the  corporation  lobby  and  abolish  boss  rule  and  machine 
government;    those  who  desire  to  bring  better  men  into  politics, 
to  simplify  elections,  to  lessen  the  power  of  partnership,  to  stop  class 
legislation,  to  elevate  the  press  and  educate  the  people,  to  open 
the  door  of  progress  to  all  wise  measures  of  reform,  to  establish  a 
reasonable  safety  valve  for  discontent  and  to  take  the  next  great 
step  in  the  improvement  of  representative  government  in  harmony 
with  the  whole  trend  of  modern  political  history  throughout  the 
civilized  world  and  with  the  fundamental  demands  of  democracy. 


424 


American  Government  and   Politics 


170.   Arguments  against  the  Initiative  and  Referendum* 

The  case  against  the  initiative  and  referendum  is  thus  forcibly 
stated  by  Senator  Lodge  in  a  speech  directed  against  the  Public 
Opinion  Bill  printed  above :  — 

As  a  matter  of  fact,  no  more  fundamental  and  far-reaching 
measure  has  been  presented  to  the  legislature  of  Massachusetts 
within  my  recollection.  It  was  not  a  mere  change  in  legal  prac- 
tice nor  an  alteration  of  long-established  laws,  nor  even  a  consti- 
tutional change  which  was  proposed.  The  bill  involves  all  these 
and  much  more,  for  if  carried  out  logically  to  its  full  extent,  it 
would  mean  nothing  less  than  a  complete  revolution  in  the  fabric 
of  our  Government  and  in  the  fundamental  principles  upon  which 
that  Government  rests.  This  may  seem  an  extreme  statement, 
but  I  think  it  is  susceptible  of  absolute  demonstration,  because 
this  bill,  if  it  should  become  law,  would  undermine  and  ultimately 
break  down  the  representative  principle  in  our  political  and  gov- 
ernmental system. 

To  make  my  meaning  perfectly  clear  it  will  be  necessary  to 
consider  briefly  and  historically  the  principles  upon  which  all 
government  rests  and  the  instruments  by  which  it  is  carried  on. 
Our  division  of  the  departments  of  government  into  executive, 
legislative,  and  judicial,  with  which  we  are  entirely  famihar,  and 
which  the  Constitution  of  the  United  States  made  coordinate  and 
independent,  is  not  a  modern  classification,  but  represents  in 
whole  or  in  part  the  recognized  and  essential  foundations  of  all 
government.  .  .  . 

Wherever  you  look  into  the  history  of  the  last  four  hundred 
years  you  will  tind  that  the  rise  and  the  power  of  the  representa- 
tive body  are  coincident  with  freedom,  and  that  the  rise  of  des- 
potism is  coincident  with  the  breakdown  of  whatever  representa- 
tive bodies  there  may  have  been.  The  history  of  the  representative 
principle  in  modern  times  is  the  history  of  political  freedom,  and 
this  representative  principle  is  the  great  contribution  of  the  English- 
speaking  people  and  of  the  period  since  the  Renaissance  to  the 


Popular  Control  in  State  Governments       425 

science  of  government.  Without  that  principle  the  democracy 
of  Greece  failed  to  build  up  a  nation  coextensive  with  the  spread 
cf  the  Greek  settlements  and  conquests  while  that  of  Rome  sank 
under  a  complete  despotism.  The  Empire  of  the  first  Napoleon 
and  of  the  third  Napoleon  as  well  were  both  reared  on  the  ruins 
of  the  legislative  bodies  of  France.  Examples  might  be  multi- 
plied, but  nothing  is  clearer  than  that  every  lasting  advance  which 
has  been  made  toward  political  freedom  has  been  made  by  and 
through  the  representative  principle.  Even  to-day  the  struggle 
in  Russia  seeks,  as  its  only  assurance,  the  establishment  of  a 
representative  body.  Indeed  the  movement  for  a  larger  political 
freedom  and  for  the  right  of  the  people  to  take  part  in  their  own 
government  which  has  filled  Europe  for  the  last  century  is  pene- 
trating now  to  countries  outside  the  pale  of  Western  civilization, 
and  the  existence  of  this  movement  in  Persia,  in  Turkey,  and  in 
China  is  manifested  by  the  efi'orts  in  all  these  countries  toward 
securing  representative  institutions. 

In  a  word,  it  may  be  said  that  the  advance  toward  political  liberty  ^^^  danger 

of  executive 

and  the  establishment  of  the  right  of  the  people  to  govern  have  despotism, 
been  coincident  and  gone  hand  in  hand  with  the  progress  of  the 
representative  principle.  It  is  also  to  be  noted  that  the  indepen- 
dence of  the  judiciary,  the  other  great  bulwark  of  liberty  and  of 
the  rights  of  the  individual,  has  followed  everywhere  upon  the 
growth  and  success  of  the  representative  principle  in  government. 
The  destruction  of  this  principle,  therefore,  would  mean  reaction 
and  the  return  to  the  system  of  an  all-powerful  executive.  There 
could  be  no  greater  misfortune  to  free  popular  government  than 
to  weaken  or  impair  the  principle  of  representation,  and  the 
quickest  way  to  break  that  principle  down  is  to  deprive  the  repre- 
sentative bodies  of  all  responsibility  and  turn  them  into  mere 
machines  of  record.  You  cannot  take  from  your  representative 
bodies  all  power  of  action  and  all  responsibility  and  e.xpect  them 
to  survive.  If  you  bind  a  man's  arm  to  his  side  and  prevent  its 
use  and  motion  the  muscles  weaken,  the  arm  withers  and  in  time 
becomes  atrophied  and  useless.     If  you  force  the  legislature  to  deal 


426  American   Government  and   Politics 

with  certain  measures  under  a  mandate  which  practically  compels 
them  to  vote  upon  these  measures  in  only  one  way  you  take  from 
your  representatives  all  responsibility  and  all  power  of  action  and 
the  representative  principle  in  your  government  will  atrophy  and 
wither  away  until  it  becomes  in  the  body  politic,  like  some  of 
those  rudimentary  organs  in  the  natural  body,  quite  useless  and 
often  a  mere  source  of  dangerous  disease.  This  Public  Opinion 
Bill  does  this  very  thing,  for  it  aims  directly  at  the  destruction  of 
representative  responsibility,  and  I  think,  although  it  received 
the  support  of  many  excellent  people  who  did  not  pause  to  con- 
sider it  carefully,  that  it  found  its  origin  among  those  small  groups 
whose  avowed  purpose  is  to  destroy  our  present  institutions  and 
forms  of  government  and  replace  them  with  socialism  or  anarchy. 
Theinstruc-  Every  constituency,  I  repeat,  has  the  right  now,  as  always,  to 
tionofrepre-   p^^gg  instructions  to  its  representative  if  it  can  agree  upon  them, 

sentatives  vs.  1  rr 

the  mandate,  just  as  it  has  the  right  of  petition ;  but  that  is  a  very  different  thing 
from  the  final  determination  by  ballot  of  every  possible  abstract 
question  by  a  popular  vote.  It  is  worth  while  to  emphasize  this 
difference,  for  it  throws  light  upon  the  whole  question.  The 
constituency,  in  the  first  place,  instructs  only  its  own  representa- 
tives. It  does  not  undertake  to  instruct  the  representatives  of  other 
constituencies,  but  only  its  own,  thereby  recognizing  the  representa- 
tive character  of  the  member  or  Senator  or  Congressman  whom  it 
has  chosen.  The  instructions,  moreover,  are  passed  by  a  meeting 
where  they  can  be  discussed,  amended,  and  modified,  and  where 
the  arguments  of  both  majority  and  minority  can  be  heard.  The 
constituency  in  passing  instructions  is  not  confined  to  a  blind, 
categorical  "yes  "  or  "no  "  upon  a  question  where  neither  amend- 
ment, discussion,  nor  modification  is  possible.  They  act  them- 
selves only  with  the  same  safeguards  which  have  been  thrown 
about  the  passage  of  laws  in  the  legislature.  They  are  not  the 
helpless  instruments  of  a  plebiscite,  but  freemen  setting  forth 
their  opinions  in  the  manner  which  the  history  of  free  government 
has  consecrated.  Instructions  from  a  constituency  are  the  very 
antithesis  of  the  "mandate"  which  it  is  proposed  to  extort  or 


Popular  Control  in  State  Governments       427 

cajole  from  the  people  by  such  a  scheme  as  this  Public  Opinion 
Bill. 

Intelligent  laws  can  not  be  passed  without  consideration,  debate,  Wise  Icgisla- 
deliberation,  and  the  opportunity  for  amendment.  To  answer  discusl'ioii'^^^ 
"yes"  or  "no"  on  an  abstract  question  is  to  legislate  by  ballot 
without  any  of  the  safeguards  which  representative  government 
throws  around  the  making  of  laws.  Plebiscites  of  this  sort  have 
determined  and  fixed  the  power  of  autocratic  emperors,  but  they 
have  never  made  the  laws  of  a  free  people.  This  Public  Opinion 
Bill  is  not  even  a  referendum,  for  the  referendum  submits  to  popu- 
lar approval  a  perfected  measure,  and  in  the  case  of  purely  local 
questions  it  is  often  used  by  our  legislature.  What  is  called  the 
initiative  is  now  covered,  for  all  reasonable  purposes,  by  the  right 
of  petition,  but  this  Public  Opinion  Bill  puts  both  initiative  and 
referendum  into  one  act  and  provides  for  the  submission  to  the  peo- 
ple not  of  perfected  law  but  of  any  abstract  question  which  any 
thousand  people  choose  to  suggest  and  which  any  five  thousand 
voters  can  be  found  to  sign,  and  upon  which  the  people  have  no 
opportunity  to  do  more  than  vote  categorically  "yes  "  or  "no." 
You  can  not  hesitate,  you  can  not  modify,  you  can  not  amend, 
you  can  not  postpone.  The  pistol  is  at  your  head ;  throw  up  your 
hands  and  answer  "yes  "  or  "no  "  at  your  peril.  There  are  four 
questions  on  the  ballot.  Only  one  probably  has  been  discussed, 
and  that  insufficiently,  for  perhaps  thirty  days.  No  matter;  you 
must  answer  "yes  "  or  "no  "  on  all  four,  and  the  legislature  must 
in  reality,  whatever  theoretical  liberty  it  is  supposed  to  retain,  obey 
the  mandate.  There  is  to  be  no  chance  for  reconsideration,  no 
time  for  reflection  or  for  second  thought.  .  .  . 

It  is  exactly  because  I  trust  the  people  and   desire  that   they  '^'^'^  voters 

1111  1  IT  I  1      •  cannot  flc- 

should  have  every  advantage  that  1  oppose  such  revolutionary   j,;,],,  ^viselv 
legislation  as  this.     To  compel  the  people  to  legislate  in  a  manner  on  hearsay 
practically  impossible  for  any  very  large  body  of  voters  is  to  do  an 
injustice  to  the  people  themselves.     It  would   be  like  compelling 
the  people  to  decide  by  ballot  on  what  they  happened  to  read  in 
the  newspapers  or  hear  from  their  neighbors  whether  a  man  was 


4^8  American  Government  and  Politics 

guilty  of  murder  or  not,  and  then  finding  fault  with  them  because 
they  reached  an  erroneous  decision.  The  people  would  not  be 
to  blame  for  the  wrong  decision,  but  those  who  forced  upon 
them  a  method  of  trying  a  criminal  case  which  in  its  very  nature 
was  utterly  impossible  in  practice.  Under  this  bill  the  people  are 
to  be  asked  to  legislate  by  saying  "yes  "  or  "  no  "  to  any  question, 
no  matter  how  abstract  or  how  complicated,  which  anyone  can 
manage  to  have  placed  on  the  ballot.  To  deal  with  such  questions 
by  a  categorical  answer  is  absurd.  It  is  the  easiest  thing  in  the 
world  to  frame  a  question  to  which  a  categorical  "yes  "  or  "no  " 
is  impossible.  Take  the  familiar  one,  "Have  you  stopped  beating 
your  wife  ?  "  Answer  it  "yes  "  or  "no  "  and  see  where  it  leaves  you. 
Abstract  questions  can  just  as  easily  be  framed  to  which  a  cate- 
gorical "yes  "  or  "  no  "  would  be  utterly  misleading,  perilous,  and 
unrepresentative.  No  people,  no  matter  how  intelligent,  could 
legislate  in  such  a  way  as  this  otherwise  than  disastrously.  There 
would  be  no  opportunity  for  modification  or  amendment,  for 
re]:»eated  votes  on  different  stages,  or  for  debate.  There  would 
be  but  little  chance  for  discussion,  and  good  legislation  without 
the  opportunity  for  debate,  amendment,  and  deliberate  considera- 
tion is  an  impossibility.  Less  than  one  per  cent  of  the  voters  of 
the  Commonwealth  would  have  under  this  bill  the  power  to  force 
upon  ninety-nine  per  cent  of  the  voters  any  kind  of  question  they 
chose  to  devise  and  compel  them  to  say  "yes"  or  "no"  to  it. 
Thousands  of  voters  either  through  indifference  or  still  more 
through  lack  of  opportunity  to  understand  the  question  would 
refrain  from  voting,  and  an  imperative  mandate  to  the  legislature 
might  Ije  carried  by  a  small  minority  of  the  voters. 
Some  Let  me  ask  your  attention  to  some  figures  in  order  to  give  you  a 

vivid  idea  of  what  I  mean  and  to  show  how  imperfectly  "yes  "  and 
"no"  votes,  taken  in  this  way,  can  be  relied  upon  as  reflections  of 
the  real  will  and  true  opinion  of  the  people.  These  votes,  which 
follow,  were  given  upon  constitutional  amendments,  the  most 
serious  ciuestions  which  can  be  submitted,  because  they  involve 
changes  in  our  organic  law  and  were  submitted  with  all  the  care 


statistics  on 
voting. 


Popular  Control  in   State  Governments       429 

and  deliberation  which   the  framers  of  our  constitution  could 
provide. 

Popular  Votes  upon  Articles  of  Amendment  to  the  Constitu- 
tion OF  Massachusetts 


Date 


Amendment 


Vote  on  Amendment 


Yes 


No       Total 


Vote 

FOR 

Gov- 
ernor 


Not 

Voting 


Nov.  3,  189] 


Nov.  8, 
Nov.  7, 
Nov.  6, 
Nov.  3, 


1893 


1896 


Nov.  s,  1907 


Abolishing  tax  qualification  for 
voters  for  governor,  lieutenant- 
governor,  and  members  of  the 
general  court 

A  majority  of  each  branch  of  the 
general  court  shall  constitute  a 
quorum 

Abolishing  property  qualification 
for  office  of  governor 

Abolishing  mileage  to  members 
of  the  general  court 

Election  of  commissioners  of  in- 
solvency abolished 

Biennial  elections  —  Treasurer's 
term  of  office  limited  to  three 
years  

Biennial  election  of  senators  and 
representatives 

Authorizing  the  governor,  with 
the  consent  of  the  council,  to 
remove  justices  of  the  peace 
and  notaries  public 


144.031 

152,688 
141,321 
125,375 
114,499 

"5:505 
105,580 

178,005 


53.554 

29.590 
68,045 
80,855 
34.741 

161,263 
1  56,211 

35.989 


198,485 

182,278 
209,366 
206,230 
149,240 

276,768 
261,800 


321,650 

399,698 
365.012 
335.354 

385,064 
373.695 


123,165 

139,372 
190,332 
158,782 
186,114 

108,296 
113,264 


These  figures  show  the  absolute  truth  of  my  assertion  that  ques-   How 
tions  submitted  in  this  way  are  decided  by  a  majority  of  a  minority,   ^'jg^s  es- 
and  if  this  is  true  of  constitutional  amendments,  fully  and  plainly   tablished. 
stated,  you  can  imagine  what  it  would  be  on  abstract  questions, 
unknown,  blind,  uncomprehended,  and  incomprehensible.     These 
figures  show  beyond  a  peradventure  that  no  true  public  opinion 
can  be  obtained  in  this  way,  but  that  on  the  contrary  this  bill  is  a 
scheme  to  secure  legislation  which  could  not  obtain  the  assent  of 
the   voters  properly  expressed   through   chosen   and  responsible 
representatives.     It  is  a  device  to  enable  small  and    active    mi- 
norities to  obtain  legislation  which  they  could  not  secure  by  le- 
gitimate methods.     Representatives  represent  the  whole  people. 
This  bill  would  force  upon  us  a  government  by  a  fraction  of  the 


43  o 


American   Government  and   Politics 


How 
popular 
will  is  not 
ascertained. 


The 

measure 
destroys  rep- 
resentative 
government. 


people  and  would  defeat  the  will  of  the  real  majority  of  the  people 
themselves. 

Yet  the  legislature  would  have  no  choice.  They  would  be 
bound  in  conscience  and  in  practice,  if  not  by  the  words  of  the 
statute,  bound  in  a  manner  and  forced  by  a  pressure  from  which 
there  would  be  no  escape,  to  obey  the  mandate  no  matter  how 
obtained,  and  no  man  could  tell  in  what  form  of  law  the  man- 
date would  be  finally  embodied.  The  chances  are  that  the  law 
under  the  pressure  of  the  mandate  would  be  the  work  of  ex- 
tremists and  contrary  to  the  wishes  even  of  those  who  voted  "yes  " 
on  the  abstract  proposition.  There  could  be  no  greater  travesty 
on  popular  government  than  a  system  which  would  permit  a  ma- 
jority of  a  minority  of  the  voters  to  force  upon  the  state  any  law 
they  chose.  It  would  give  an  enormous  opportunity  to  the  power 
of  money  skilfully  and  corruptly  used.  It  would  impair  the 
rights  of  the  people  and  leave  those  of  the  individual  naked  and 
defenseless.  The  result  would  not  be  an  expression  of  the  popu- 
lar will,  but  a  mechanical  parody  of  that  will  so  gross  that  even 
its  authors  would  gaze  upon  it  with  amazement  and  disgust.  .  .  . 

Experience  has  shown  us  the  justice  of  their  opinions.  This 
bill  invites  us  to  cast  aside  all  that  they  did,  break  down  every 
method  of  lawmaking  which  they  established,  and  reject  that 
principle  which  they  most  valued,  the  principle  of  representation. 
I  say,  reject  the  principle  of  representation,  because  when  you 
impair  it  and  take  from  your  representatives  all  power  and  all 
responsibility,  the  principle  of  representation  falls.  No  men 
invested  with  the  power  to  make  laws,  but  relieved  of  all  respon- 
sibility for  the  laws  they  make,  are  to.be  trusted.  We  may  change 
many  things,  we  may  abolish  laws  and  put  new  ones  in  their  place, 
but  we  can  not  alter  the  fundamental  principles  of  our  government 
and  expect  the  fabric  to  stand.  If  we  undermine  and  overthrow 
the  bulwarks  of  ordered  liberty  and  indi\ddual  freedom,  the  citadel 
itself  will  not  long  survive.  Any  measure  which  breaks  down 
free  representative  government,  advances  us  proportionately  on 
the  road  to  executive  government,  to  the  rule  of  one  man.     This 


Popular  Control  in  State  Governments       43 1 

Public  Opinion  Bill  will  reduce  the  representative  on  one  question 
after  another  to  the  level  of  a  machine.  As  the  representative 
principle  sinks,  the  executive  power  rises.  I  believe  in  maintaining 
both  and  maiming  neither.  I  am  opposed  to  crippHng  and  ex- 
tinguishing representative  government.  I  love  freedom  and  hate 
tyranny,  and  anything  which  depresses  the  one  and  opens  the 
road  to  the  other  will  meet  with  resistance  from  me.  It  is  for 
this  reason  that  I  oppose  this  bill. 


CHAPTER  XXIV 


THE   STATE   EXECUTIVE   DEPARTMENT 


171.    The  Legal  Position  of  the  Governor 

The  place  of  the  governor  in  the  state  administrative  system 
and  his  relations  to  the  other  officers  in  the  executive  department 
are  described  by  Chief  Justice  Wilson,  of  Illinois,  in  a  noteworthy 
decision  dealing  with  the  governor's  power  to  remove  the  secre- 
tary of  state :  — 

The  case  then  resolves  itself  into  the  single  question,  Does  the 


The  cov- 

power  found   Governor  possess  the  constitutional  power  of  removing  from  office 

in  the  Con- 
stitution of 
the  state. 


the  Secretary  of  State,  and  appointing  a  successor,  at  will?  In 
deciding  this  question,  recurrence  must  be  had  to  the  Constitution. 
That  furnishes  the  only  rule  by  which  the  court  can  be  governed. 
That  is  the  charter  of  the  Governor's  authority.  All  the  powers 
delegated  to  him  by,  or  in  accordance  with  that  instrument,  he  is 
entitled  to  exercise,  and  no  others.  The  Constitution  is  a  limita- 
tion upon  the  powers  of  the  legislative  department  of  the  govern- 
ment; but  it  is  to  be  regarded  as  a  grant  of  powers  to  the  other 
departments.  Neither  the  executive  nor  the  judiciary,  therefore, 
can  exercise  any  authority  or  power,  except  such  as  is  clearly 
granted  by  the  Constitution. 

As  the  right  of  the  Governor  to  remove  the  Secretary  must  be 
granted  by  the  Constitution,  or  it  does  not  exist,  it  therefore  de- 
volves upon  those  who  advocate  the  claim  of  the  executive  power 
to  show  the  grant  upon  which  it  is  founded ;  to  point  out  the  clause 
and  section  of  the  Constitution  from  which  't  is  derived.  How 
has  this  been  done  ?  Has  any  express  grant  been  produced  ?  No ; 
it  is  not  pretended  that  any  express  grant  is  to  be  found  in  the 
Constitution.  But  it  is  contended  that  the  power  in  question  is 
granted  to  the  Governor  by  implication.     That  from  the  grant  of 

432 


The  State   Executive   Department  433 

other  powers,  this  one  of  removing  the  Secretary  from  office  is 
necessarily  implied,  as  the  means  of  rendering  those  grants  avail- 
able; and  the  following  clauses  of  the  Constitution  are  relied  on 
in  support  of  this  position.  .  .  . 

The  next  grant  of  power  relied  on  is,  that  "  The  executive  power  Interpreta- 
of  the  State  shall  be  vested  in  a  Governor."  This  clause  is  treated  general 
by  the  court  below  as  conferring  numerous  and  ample  powers  upon  executive 
the  Governor.  All  that  are  usually  denominated  executive  powers, 
by  theoretical  writers,  are  supposed  to  be  included  in  this  grant  to 
the  Governor,  except  such  as  are  expressly  conferred  upon  other 
departments.  This,  I  think,  I  shall  be  able  to  show  is  a  mis- 
taken view  of  the  subject.  This  clause,  Hke  the  preceding  ones, 
is  a  declaration  of  a  general  rule;  and  the  same  remarks  are  ap- 
plicable to  this,  as  a  grant  of  power,  that  have  been  made  in  refer- 
ence to  them.  It  confers  no  specific  power.  What  would  have 
been  its  operation,  if  the  Constitution  had  contained  no  specific 
enumeration  of  executive  powers,  is  a  very  different  question 
from  that  now  presented,  and  might  have  admitted  of  a  different 
answer.  But  it  has  been  settled  by  the  Supreme  Court  of  the 
United  States  that  an  enumeration  of  the  powers  operates  as  a 
limitation  and  restriction  of  a  general  grant. 

The  authority  of  the  Governor  to  require  information  from  the  The  power 

_  .         ,  .  ,  ,      .  1        1        •  r    to  require 

officers  m  the  executive  department,  relative  to  the  business  ot  information, 
their  respective  offices,  and  the  obligation  of  the  Secretary  to  keep 
a  register  of  his  official  acts,  are  relied  upon,  in  connection  with 
the  injunction  that  the  Governor  shall  see  that  the  laws  are  faith- 
fully executed,  as  implying  an  authority  in  him  to  dismiss  the  Secre- 
tary. If  the  right  to  require  information  from  an  officer  implied 
the  right  to  remove  him,  the  Legislature  would  have  the  power  not 
only  to  remove  the  Governor,  but  a  power,  concurrent  with  him, 
to  remove  all  the  officers  in  the  executive  department;  for  the 
Legislature  has,  under  its  general  powers,  authority  to  call  on  all 
of  them  for  official  information. 

But  it  is  argued  from  the  Secretary's  obligation  to  register  the 
official  acts  of  the  Governor,  and,  when  required,  to  give  him 


434 


American   Government  and   Politics 


official  information,  that  such  an  official  intercourse  of  confidence 
must  exist  as  to  imply  an  authority  in  the  Governor  to  remove  the 
Secretary.  The  President  may  require  the  opinion  of  the  heads  of 
departments,  their  views,  counsel,  and  advice,  relative  to  the 
legality  or  policy  of  measures.  In  the  exercise  of  this  right  he 
calls  on  one  or  more,  according  to  the  difficulty  or  importance  of 
the  subject ;  but  whether  the  consultation  is  separate,  or  in  cabinet 
council,  it  is  always  private  and  confidential,  and  is  so  regarded, 
not  only  by  the  officers  but  by  the  law  also ;  for  none  of  the  officers 
or  their  clerks  (who  are  sworn  to  secrecy)  can  be  required  to  give 
testimony  of  transactions,  or  matters  of  a  confidential  character. 
But  neither  in  contemplation  of  law,  nor  in  fact,  is  there  any 
official  confidential  intercourse  between  the  Governor  and  the 
Secretary,  or  other  officers  of  the  executive  departments.  He  may 
call  upon  them  for  information  relative  to  matters  connected  with 
their  offices.  He  may,  for  example,  enquire  of  the  Treasurer,  of 
the  Auditor,  what  amount  of  warrants  are  outstanding,  and  of  the 
Secretary,  what  are  the  kind  and  number  of  commissions  to  which 
he  has  put  the  State  seal ;  or  whether  the  laws  are  all  distributed, 
etc.  These  are  all  public  matters,  in  reference  to  which  there  can 
be  neither  secrecy  nor  confidence  and  it  is  only  in  relation  to  such 
that  the  Governor  can  require  information.  He  has  no  right  to 
the  opinion  or  advice  of  the  Secretary,  as  to  the  legality  or  propriety 
of  measures  of  any  kind ;  and  as  all  the  duties  of  the  Secretary  are 
prescribed  by  law,  and  as  it  is  only  in  relation  to  them  that  he  can 
be  required  to  give  information,  there  cannot,  therefore,  in  the  na- 
ture of  things,  be  any  implication  of  confidence  from  communica- 
tions relative  to  a  public  law  or  to  matters  of  fact  recorded  for  pub- 
lic information. 

The  reasoning  in  favor  of  the  Governor's  authority  to  remove  the 
Secretary,  because  of  the  latter's  duty  to  register  his  official  acts, 
can  have  no  application  to  the  Secretary  of  State,  an  officer  whose 
office  is  created,  and  whose  duty  to  keep  a  register  of  the  acts  of 
the  Governor  is  prescribed  by  the  Constitution.  In  the  perform- 
ance of  this,  as  of  other  duties,  he  does  not  act  as  the  Governor's 


The  State   Executive   Department  435 

officer,  subject  to  his  control  and  direction,  but  as  the  officer  of 
the  Constitution,  bound  to  the  performance  of  such  duties  only  as 
have  been  assigned  by  that  instrument  and  the  law. 

The  injunction,  that  the  Governor  shall  see  that  the  laws  are  The  duty  of 
faithfully  executed,  it  is  also  urged,  gives  him  the  control,  and  execution  of 
consequently  the  power  of  removal  of  the  officers  of  the  executive  the  laws, 
department.  This  interference  is  not  justified  by  the  premises. 
It  has  neither  the  sanction  of  authority  nor  the  practice  of  other 
State  executives,  both  of  which  are  opposed  to  it.  The  practice  of 
the  President,  as  I  will  show,  is  founded  upon  other  grounds,  and 
his  power  does  not  extend  to  the  removal  of  any  officers  whose 
offices  are  created  by  the  Constitution,  and  whose  duties  are  regu- 
lated by  law.  The  manifest  intention  of  the  Constitution,  and  the 
authority  cited,  in  the  absence  of  all  precedent  and  principle  mili- 
tating against  it,  would  seem  to  be  conclusive  against  the  executive 
claim  of  power,  under  this  provision,  to  direct  the  Secretary  how  he 
shall  execute  the  duties  assigned  him  by  law;  and  if  he  has  no 
power  to  direct  him  how  he  shall  execute  his  duties,  he  certainly 
has  no  power  to  dismiss  him  for  not  conforming  to  his  direc- 
tions. .  .  . 

The  Constitution  of  the  United  States  and  of  this  State  contain   State  and 
the  same  declarations  that  the  executive  powers  of  the  Government   executives 
shall  be  vested  in  the  respective  executives;    and  in  the  Constitu-   compared. 
tion  of  the  first,  this  declaration  is  carried  out  by  its  other  provi- 
sions.    It  creates  no  other  officers  in  whom  a  portion  of  this  power 
is  vested  or  required  to  be  vested  by  law.     Those  officers  whom  the 
President  may  remove  are  created  by  law,  as  aids  and  helps  to 
him  in  the  performance  of  his  duties.     But  the  declaration  in 
our  Constitution,  that  the  executive  power  of  the  government  shall 
be  vested  in  the  Governor,  is  to  be  understood  in  a  much  more 
limited  sense;    inasmuch  as,  by  its  other  provisions,  it  is  greatly 
circumscribed  and  narrowed  down.     Unlike  the  Constitution  of 
the  United  States,  ours  has  created  other  executive  officers,  in 
whom  a  portion  of  this  power  is  required  to  be  vested  by  law^ 
not  to  be  assigned  by  the  Governor.  .  .  . 


436 


American  Government  and  Politics 


The  Governor  is,  neither  in  fact  nor  in  theory,  personally  nor 
poHtically  responsible  for  the  official  conduct  of  the  Secretary, 
or  any  other  officer.  He  cannot  assign  him  the  performance  of 
a  single  duty  or  control  him  in  the  performance  of  those  assigned 
by  law.  He  does  not  move  in  the  executive  circle,  as  has  been  said, 
but  in  that  marked  out  by  the  Constitution  and  by  the  law,  sepa- 
rate, distinct  from,  and  independent  of,  that  of  the  Governor. 
He  looks  to  the  law  for  his  authorities  and  duties,  and  not  to  the 
Governor;  and  to  that,  and  to  that  alone,  he  is  responsible  for 
their  performance. 


172.    The  Question  of  Centralization  in  Administration 

In  his  inaugural  address  of  1909.  Governor  Hughes,  of  New 
York,  explained  how  the  governor,  charged  with  the  faithful 
execution  of  the  laws,  was  handicapped  by  the  division  of  re- 
sponsibility in  the  administration  and  by  the  decentralization  of 
authority. 

While  the  Governor  represents  the  highest  executive  power  in 
the  State,  there  is  frequently  observed  a  popular  misapprehension 
as  to  its  scope.  There  is  a  wide  domain  of  executive  or  adminis- 
trative action  over  which  he  has  no  control,  or  slight  control. 
There  are  several  elected  State  officers,  not  accountable  to  the 
Governor,  who  exercise  within  their  prescribed  spheres  most 
important  executive  powers.  To  the  Comptroller  and  State 
Treasurer  are  confided  administrative  powers  with  respect  to 
financial  matters.  The  Attorney-General  is  charged  with  duties 
appropriate  to  the  enforcement  of  public  rights  through  legal 
machinery.  The  State  Engineer  and  Surveyor  has  important 
powers  with  regard  to  the  canal  improvement  and  the  only  member 
of  the  Canal  Board  accountable  to  the  Governor  is  the  Superin- 
tendent of  Public  Works  who  has  a  limited  authority.  The  Com- 
missioners of  the  Land  Office  are  independent  of  the  Governor. 

The  multiplication  of  executive  duties  incident  to  the  vast  and 
necessary  increase  in  State  activities  has  resulted  in  the  creation  of 
a  large  number  of  departments  exercising  administrative  powers 


The  State   Executive   Department  437 

of  first  consequence  to  the  people.  The  Governor  has  the  power 
of  appointment,  but  in  most  cases  the  concurrence  of  the  Senate 
is  necessary.  The  terms  of  these  officers  are  generally  longer 
than  the  Governor's  term.  And  in  their  creation  the  Legislature 
with  few  exceptions  has  reserved  final  administrative  control  to 
the  Senate  in  making  the  heads  of  departments,  to  whose  appoint- 
ment the  Senate's  consent  is  necessary,  removable  only  by  it. 

Our  system  is  therefore  widely  different  from  that  of  the  Federal   i^ivision  of 

mi         T»       •  1  I  I      1  •       ri   1  •  1  !•  responsibility 

government,  i  he  rresident,  through  his  Cabinet,  has  direct  giypg  „o  re- 
coritrol  of  the  great  executive  departments,  and  administrative  sponsibility. 
officers  though  appointed  with  the  concurrence  of  the  Senate  are 
responsible  to  the  President  and  are  removable  by  him.  Yet  it 
can  hardly  be  said  that  there  is  more  reason  to  fear  centralization 
in  the  State  than  in  the  Nation.  The  practice  of  withdrawing 
appointive  administrative  officers  from  direct  responsibility  to  the 
executive  head  of  the  State,  who  is  directly  accountable  to  the 
people,  is  of  doubtful  wisdom.  A  division  of  accountability  which 
practically  results  in  no  real  accountability  to  any  one  lessens  the 
proper  stimulus  to  efficiency. 

Responsibilitv  to  the  people  is  the  essential  safeguard  of  free  Centraliza- 

',  .      ,  I         1       •  r     11  r        t'O"  '^'oes  not 

institutions.  1  his  does  not  mean  the  election  01  all  or  even  01  a  c„.langer 
great  number  of  administrative  officers,  for  undue  burdens  uj^on  liij^rty. 
the  electoral  machinery  would  defeat  its  purpose.  But  it  would 
seem  to  imply  that  distrilnition  of  administrative  powers  should 
have  as  its  correlative  the  proper  centralization  of  responsibility. 
It  may  fairly  be  said  to  require  that  the  executive  authority,  exer- 
cising the  appointing  power  under  whatever  check,  should  be 
responsible  for  administration  and  should  have  the  control  upon 
which  such  responsibility  must  rest. 

The  Governor  is  to  "  take  care  that  the  laws  are  faithfully  exe-  ^^^  s°^' 

.....  ernor  and 

cuted."     But  With  respect  to  this  duty  there  are  further  limita-  local  officers, 
tions  than  those  involved  in  his  relation  to  appointive  officers.     It 
is  part  of  our  system  of  government  that  the  laws  in  large  measure 
are  enforced  through  officers  locally  chosen.     To  the  Governor  in 
certain  cases  is  given  the  right  to  remove  local  officers,  but  this 


438 


American   Government  and   Politics 


is  only  upon  charges  properly  made  and  sustained  after  hearing. 
While  the  Governor's  exercise  of  this  jurisdiction  is  not  subject 
to  review,  he  in  his  province,  like  the  highest  court  of  the  State 
in  its  province,  must  not  act  capriciously  or  arbitrarily,  but  in 
accordance  with  the  rules  and  principles  governing  his  authority. 
The  Governor  is  as  much  bound  to  support  our  constitutional 
system  of  local  government  so  far  as  it  provides  for  the  local 
choice  of  officers,  as  he  is  to  remove  officers  clearly  ])i"oved  to  be 
guilty  of  serious  neglect  or  misconduct.  The  Governor  has  no 
right  to  use  his  power  of  removal  to  assert  his  preferences  or  to 
attempt  even  temporarily  to  impose  his  will  upon  the  community 
which  has  chosen  its  officer.  The  appeal  to  him  is  the  necessary 
check  to  secure  responsible  government  and  must  be  justified  by 
proof  of  such  dereliction  as  may  be  sufficient  to  make  removal  of 
the  elected  officer  consistent  with  our  fundamental  principles  of 
local  self-government. 


173.    The  Method  of  Selecting  State  Officers  * 

Although  recent  tendencies  in  state  constitutional  development 
would  seem  to  indicate  that  the  American  people  had  settled  upon 
popular  choice  as  the  best  method  of  selecting  the  more  im- 
portant state  officials,  the  question  cannot  be  said  to  have  been 
decided  satisfactorily.  Popular  election  and  appointment  by 
the  governor  were  discussed  at  length  in  the  Kentucky  constitu- 
tional convention  of  1890. 

Mr.  McHenry.  I  do  not  believe,  after  the  experience  we 
have  had  in  Kentucky  in  regard  to  our  late  Treasurer,  that  the 
people  care  to  elect  a  Treasurer  again.  I  think  the  money  is 
safer  in  the  hands  of  an  appointee  of  the  Governor.  The  people 
of  Kentucky  elect  a  man  ;  they  never  see  him.  Tate  [a  defaulting 
treasurer]  lived  in  Frankfort  here,  and  they  never  saw  him  in  my 
county  where  we  have  ^wa  thousand  voters.  We  voted  for  him 
nine  consecutive  times.  The  people  took  him  upon  trust,  because 
he  was  nominated  by  the  ])olitical  party  to  which  a  majority  of  the 
people  belonged.     They  believed  him  to  be  honest  and  elected 


The  State   Executive  Department  439 

him  because  he  was  the  nominee  of  their  party ;  and  yet  the  result 
was  that  he  was  a  defaulter  finally,  and  was  a  rascal,  I  presume, 
from  the  time  he  was  first  elected.  I  mean  to  say  we  are  really 
not  qualified  to  select  a  man  for  Treasurer  of  the  State.  The 
majority  of  the  people  do  not  know  and  cannot  know  of  the  quali- 
fications of  the  man  who  is  running  for  office.  In  my  county  there 
were  not  fifty  men  who  knew  Tate.  He  never  put  his  foot  in  the 
county,  and  there  were  not  fifty  men  in  the  county  who  had  ever 
seen  him.  The  remedy  I  propose  is  that  we  make  the  Governor 
of  the  State  morally  responsible  for  the  money.  I  do  not  mean  to 
make  him  legally  responsible,  but  only  morally.  We  have  never 
made  a  mistake  in  electing  a  Governor  of  Kentucky.  We  have 
always  elected  men  of  high  character  and  integrity,  and  if  such  a 
man  is  to  be  held  morally  responsible  for  the  finances,  he  will  see 
to  it  that  the  treasury  is  honestly  managed.  By  this  we  give  the 
Governor  such  pov/er  that  he  can  turn  this  Treasurer  out  whenever 
he  sees  proper  to  do  so.  My  amendment  goes  to  that  extent  that 
he  shall  hold  his  office  simply  during  the  pleasure  of  the  Governor, 
and  if  the  Governor  finds  out,  not  absolutely  or  certainly,  or  to 
such  an  extent  as  would  authorize  an  impeachment,  but  if  the  Gov- 
ernor understands  that  the  Treasurer  of  the  State  is  dealing  in 
margins,  or  buying  stocks  or  bonds,  or  investing  in  booms,  then 
I  take  it  for  granted  that  the  Governor,  whose  integrity  and  high 
character  are  involved,  would  change  the  State  Treasurer. 

I  do  not  mean  to  say  that  the  people  elect  dishonest  men,  but  The  voters 
we  are  more  apt  to  put  a  rascal  in  the  Treasury  Department,   scrutinize 
where  he  goes  through  a  political  convention  log-rolling  votes  from   the  minor 
one  end  of  the  State  when  he  lives  in  another.     Then,  when  by  his 
shrewdness  and  astuteness  he  carries  the  convention,  he  is  elected 
by  the  people.     He  will  be  elected,  however  dishonest  he  is,  for 
the  people  do  not  know  it.     We  have  this  sad  experience  in  Ken- 
tucky and  in  other  states,  and  I  do  say  that  if  the  gentlemen  had 
debated  this  before  their  constituents  when  they  were  candidates 
for  the  position  they  now  hold,  I  think  they  would  have  found  that 
a  majority  of  the  people  of  Kentucky  arc  in  favor  of  the  position 


state  offices. 


440  American  Government  and  Politics 

I  assume,  or  something  similar  to  it.  The  people  want  their  money 
safe,  and  if  anybody  can  suggest  any  better  way  than  I  have  done, 
I  will  be  perfectly  willing  to  have  that  put  in  place  of  my  amend- 
ment. This  puts  behind  the  Treasurer  the  high  character  of  the 
Governor.  We  always  elect  good  Governors.  The  political 
parties  do  not  look  at  the  character  of  the  minor  officers  as  they  do 
at  the  character  of  the  Governor.  They  do  look  at  the  integrity 
and  high  character  of  the  Governor,  and  no  man  who  has  not  a 
reputation  from  one  end  of  the  State  to  another  can  ever  be  nomi- 
nated by  any  political  party  for  Governor  of  the  State.  When  we 
put  our  money  under  the  surveillance  of  the  Governor,  he  can  say, 
"I  have  suspicion  that  this  man  is  dealing  in  margins,  or  buying 
stocks  or  bonds,  and  the  State  is  taking  the  risk  of  whether  he  wins 
or  loses  in  his  gambling,  and  I  will  turn  him  out.  I  do  not  want 
my  character  to  go  down  with  his."  .  .  . 

Mr.  Hanks.  I  beheve  the  voters  of  this  Commonwealth  are 
competent  to  elect  their  Treasurer.  I  know  full  well  that  they  are 
able  to  elect  a  Governor,  and,  by  the  way,  as  was  said  yesterday, 
we  have  universally  elected  a  good  one  without  one  exception. 
If  the  people  of  Kentucky  are  capable  of  electing  a  good  Governor, 
I  think  they  are  capable  of  electing  a  good  Treasurer.  As  I  have 
said,  I  was  sincere  in  believing  that  the  Delegate  from  Ohio  was 
jesting  about  it.  I  cannot  imagine  his  object,  if  he  was  sincere. 
I  do  not  believe  that  the  people  of  Kentucky  will  go  back  to  the 
appointive  system.  They  will  not  do  it.  They  cannot  do  it. 
They  ought  not  to  do  it.  They  ought  to  keep  the  power  to  elect 
all  the  officers  of  the  Commonwealth  in  their  own  hands,  and  grasp 
it  tight.  Keep  the  right  and  power  to  elect  and  control  by  legis- 
lative enactments  the  actions  of  all  the  officers  of  the  Commonwealth. 
We  should  adhere  to  that  with  great  tenacity,  because  power  will 
grow.  The  strength  of  men  in  power  increases.  Hold  them  as  it 
were  in  the  hollow  of  your  hand,  so  that  they  can  be  controlled 
by  the  people  of  the  Commonwealth,  to  whom  the  Government 
belongs. 

Mr.  Cox.     When  the  right  of  the  great  masses  of  the  people 


The  State   Executive  Department  441 

is  endangered,  let  us  seek  a  remedy,  and  that  remedy  is  found  in   The  danger 

,  ..,,..,..  ....  in  increasing 

the  exercise  of  the  elective  franchise  in  conformity  with  statutory  the  govern- 
or organic  law.  I  say  here,  taking  the  history  of  Kentucky  as  the  o^'s  power, 
evidence  upon  which  we  should  base  our  judgment,  sitting  as  a 
jury  to  decide  this  great  case  under  the  evidence  given  in  the  his- 
tory of  our  State,  we  must  unquestionably  say  that  the  appointing 
power  has  proved  a  failure,  and  that  we  must  maintain  our  rights 
by  securing  to  the  people  that  sovereignty,  that  right,  that  power  to 
which  they  are  justly  entitled.  Now,  I  find  a  strong  feeling  in  this 
Convention  to  give  to  the  Governor  of  this  Commonwealth  vast 
and  almost  unlimited  power,  to  make  him  a  sort  of  autocrat  here 
for  four  years.  Some  delegates  are  urging  that  he  must  appoint 
Judges  of  the  Courts,  that  he  should  appoint  all  the  State 
oflScers  at  this  Capital.  If  that  is  right,  why  not  ta'ke  another 
step  down?  Let  him  appoint  our  County  Court  Judges,  let  him 
appoint  our  County  Court  and  Circuit  Court  Clerks,  let  him 
appoint  our  magistrates;  yes,  let  him  become  the  mighty  ruler 
in  this  great  Commonwealth,  clothed  with  that  power  which 
alone  belongs  to  the  people,  and  which  every  lover  of  liberty  in 
America  should  cherish.  Yes,  give  him  one  power,  and  soon  he 
will  step  forward  and  ask  for  an  increase  of  that  power,  I  love 
our  form  of  Government.  I  love  it  for  its  glory,  its  beauty  and  its 
grandeur.  I  love  it  for  what  it  has  accomplished;  but  while  I 
love  it,  I  loathe  in  the  deepest  recess  of  my  heart  any  effort  what- 
ever that  will  go  in  the  direction  of  taking  from  the  people  of  Ken- 
tucky the  right  to  choose  their  officers.  I  hold  the  taking  of  such 
a  right  from  them  is  an  innovation  of  the  right  which  every  man  in 
this  broad  land  should  cherish.  Let  us,  gentlemen  of  this  Con- 
vention, maintain  our  rights.  Let  us  stand  up  boldly  and  let  no 
man  rob  us  of  a  single  right. 

Mr.  Bullitt.     This  is  simply  a  business  question.     I  think  all   Administra- 
r    I  ^'°"  ^  matter 

this  gush  about  the  rights  of  the  people  to  control  the  matter  has  of  business. 

but  little  to  do  with  it.     It  is  a  simj)le  matter  of  business  how  we 

shall  guard  the  money  that  has  been  gathered  for  the  administration 

of  the  government  of  the  State.     The  Committee  thought  that  the 


442  American  Government  and  Politics 

best  way  to  guard  our  money  was  to  make  the  treasurer  ineligible 
to  succeed  himself.  According  to  the  information  I  get  from  the 
newspapers,  the  Treasurers  of  the  States  of  Mississippi,  Maryland 
and  some  other  states,  as  well  as  the  treasurer  of  the  State  of 
Kentucky,  had  adopted  the  habit  of  using  the  State  money  for  the 
purpose  of  securing  their  succeeding  election.  Now,  all  must 
admit  that  this  is  an  evil.  .  .  .  Master  Commissioners  have  made 
use  of  moneys  to  secure  the  election  of  the  judge  who  would  appoint 
them,  and  the  treasurer  might  use  the  same  method  to  secure  the 
election  of  a  Governor.  Therefore,  the  safest  and  best  business 
plan  was  to  make  him  ineligible  for  a  second  election,  or  to  suc- 
ceed himself;  and  by  making  him  ineligible  to  succeed  himself  we 
withdraw  from  him  every  inducement  to  make  use  of  the  State 
money  to  re-elect  himself. 

174.    The  Growth  0/  Executive  Influence* 

Mr.  Gamaliel  Bradford,  an  eminent  publicist  and  careful 
observer  of  American  institutions,  thus  describes  what  he  regards  as 
one  of  the  marked  tendencies  of  American  political  evolution  in 
recent  years :  — 

Powers  of  Even  contemporaries  are  able  to  note  the  beginnings  of  silent 

in  relation  innovation.  Of  all  of  its  bearings,  they  may  be  but  dimly  aware, 
to  legislation,  yet  they  can  see  that  a  real  change  is  slowly  taking  place.  One 
such  lies  upon  the  surface  of  English  politics  to-day,  and  is  clearly 
discernible  in  our  own.  We  mean  the  greatly  heightened  powers 
of  the  executive  government,  in  what  relates  to  legislation.  In 
England,  the  initiative  of  private  members  of  Parliament  has 
almost  entirely  disappeared.  All  the  important  bills  are  now 
government  measures,  and  the  government  is  claiming  and  getting 
more  and  more  of  the  time  of  the  House  of  Commons.  This  is 
a  profound  change,  and  represents  an  entire  dislocation  of  the 
literary  theory  of  the  British  Constitution,  a  hundred  and  twenty 
years  ago. 

But  a  similar  alteration  of  inherited  practice  is  rapidly  invading 
this  country  also.     The  Executive  as  Legislator  is  now  a  familiar 


The  State  Executive   Department  443 

figure  among  us.     President  Roosevelt  is  not  the  only  exemplar.   Executives 
Governor  after  Governor  has  been  making  of  himself  the  chief   legisiadve^^ 
fountain  of  legislation  in  his  State.     There  is  no  more  suggestive  functions, 
sign  of  the  times.     East  as  well  as  West,  the  phenomenon  presents 
itself.     Governor  La  Follette  in  Wisconsin  has  been  imitated  by 
Governor  Johnson  of  Minnesota  and  Governor  Hoch  of  Kansas. 
To  the  initiative  of  Governor  Hughes  of  New  York  comes  an 
immediate   response   from    Governor   Woodruff   of   Connecticut 
and  Governor  Fort  of  New  Jersey.     All  of  them  press  critical 
matters  upon  their  Legislatures.     All  of  them  tacitly  assume  that 
the  Governor  must  intervene  with  prompting  and  public  advocacy 
of  important  legislation,  or  else  it  will  fail.     Nor  is  this  attitude 
much  resented  by  Legislature  or  Congress.     As  for  the  people, 
they  accept  it  enthusiastically. 

Yet  how  deep  a  breach  with  the  old  ideas  and  historic  practice  A  breach 
all  this  represents,  every  one  must  see  who  stops  to  think.  The  practices 
jealous  isolation  of  the  Executive,  in  all  that  relates  to  law-making 
(except  assent  to  new  statutes)  is  one  of  the  most  vital  traditions 
of  Anglo-Saxon  constitutional  law.  Contrast  this  with  the  constant 
appeal,  nowadays,  to  the  wishes  of  President  or  Governor;  with 
the  direct  activity  of  Executives  not  only  in  recommending  legisla- 
tion but  in  sending  for  members  of  Congress  or  of  the  Legislature 
to  urge  them  to  vote  for  particular  measures;  and  we  begin  to 
understand  how  long  is  the  road  we  have  travelled. 

How  does  all  this  fit  into  the  democratic  theory?  What  does  The  signifi- 
it  signify  in  regard  to  representative  institutions?  It  would  be  movement, 
rash  to  attempt  a  full  and  satisfying  answer  to  these  questions. 
We  are  too  near  the  political  development,  too  much  a  part  of  it, 
to  detach  ourselves  and  pass  judgment  u])on  it  conclusively. 
Partial  answers,  however,  we  may  find  in  the  very  facts  under 
discussion.  It  is  clear,  to  begin  with,  that  Congressmen  and 
members  of  the  Legislature  are  becoming  more  strictly  local  rep- 
resentatives. They  cannot  see  beyond  their  districts.  Few  of 
them  are  nationally-minded  or  State-minded.  In  large  affairs, 
affecting  all  the  peoi)lc,  they  have  lost  their  initiative,  because 


444  American   Government  and  Politics 

their  time  and  strength  are  taken  up  with  the  petty  interests  of 
their  immediate  constituents.  For  them,  they  run  errands,  seek 
offices,  work  for  local  appropriations. 
The  execu-  Somebody  else  has  to  take  the  broad  view,  to  look  after  the 
sents  wider  nation  or  the  State,  while  they  are  absorbed  with  Buncombe 
interests.  County  or  Podunk.  And  this  somebody  is  getting  to  be  more  and 
more  the  directly  elect  of  all  the  people.  To  a  President,  or  Gov- 
ernor, thus  chosen,  all  the  ])eople  are  coming  to  look  increasingly, 
not  merely  for  administration,  but  for  impulse  and  driving  povv'er 
in  legislation.  They  may  be  no  wiser  than  the  nominal  legis- 
lators, but  they  have  a  wider  outlook,  and  they  feel  mightier  im- 
pulses from  the  whole  citizenship  pushing  them  on.  Hence,  it 
is  no  trouble  for  democracy  to  adjust  itself  to  the  new  practice. 
Choosing  the  executive  directly,  it  chooses  him  now  to  be  the  chief 
medium  of  progressive  and  reformatory  law-making.  If  it  gets 
its  will  done,  it  cares  little  about  the  instrument.  If  American 
Congresses  and  Legislatures  are  leaving  off  fighting  the  Execu- 
tive, it  is  because  the  Executive  has  come  best  to  represent  the 
whole  people. 

175.    The  Veto  Power 

During  the  debate  in  the  Kentucky  constitutional  convention 
of  1890,  over  the  question  as  to  whether  a  two-thirds  vote  should 
be  required  in  the  legislature  to  pass  a  bill  over  the  governor's 
veto,  the  question  of  the  veto  power  in  all  of  its  bearings  was 
discussed. 

The  question  Mr.  Carroll.  Why  should  we  not  insert  a  provision  that  it 
shall  require  two-thirds  of  the  General  Assembly  to  pass  a  bill 
over  the  Governor's  veto?  Can  any  good  reason  be  assigned 
against  it?  The  Governor's  veto  is  not  absolute.  The  power 
vested  in  the  Executive  is  simply  a  qualified  one,  and  the  main 
object  of  it  is  to  direct  the  attention  of  the  Legislature  to  any  mat- 
ter that  may  have  escaped  their  attention,  in  order  that  they  may 
have  an  opportunity  to  correct  it ;  and  if  two-thirds  of  the  members 
of  any  General  Assembly  cannot  be  found  who  are  willing  upon 


repassagc. 


The  State   Executive    Department  445 

a  reconsideration  to  pass  a  bill  over  the  Governor's  veto,  I  insist 
that  that  bill  must  be  in  itself  of  questionable  propriety,  because 
any  laudable  measure,  any  measure  beneficial  to  the  best  interests 
of  the  people  of  the  State,  could  certainly  obtain  the  vote  of  two- 
thirds  of  the  members  elected  to  each  branch  of  the  General 
Assembly. 

On  the  other  hand,  the  Legislature,  acting  as  they  often  do.  Distrust  of 
hastily  and  unwisely;  passing  bills  as  they  often  do,  without  any  lature. 
consideration  whatever,  can,  under  the  present  law  and  under  the 
report  of  the  Committee  as  adopted,  repass  them  over  the  Gov- 
ernor's veto  without  any  difficulty  whatever,  if  they  see  proper  to 
do  so.  It  is  a  well-known  fact  that  one  of  the  prime  causes  for 
the  calling  of  this  Convention  was  the  abuses  practiced  by  the 
Legislative  Department  of  this  State;  and  I  venture  the  assertion 
that  except  for  the  vicious  legislation  and  the  local  and  special  laws 
of  all  kinds  and  character  passed  by  the  Legislatures  that  have 
met  in  Kentucky  for  the  past  twenty  years,  that  no  proposition 
to  call  a  Constitutional  Convention  could  ever  have  received  a 
majority  of  the  votes  of  the  people  of  Kentucky.  The  people  of 
Kentucky  are  more  in  danger  from  abuses  by  the  Legislative  De- 
partment than  they  are  from  abuses  of  any  other  Department  of 
the  State  Government. 

Mr.  Mackoy.     Government  is  a  system  of  checks  and  balances,   The  gov- 
and  that  government  it  seems  to  me  is  the  best  in  which  the  powers   conservative 
of  government  are  so  arranged  as  that  neither  may  infringe  upon   force, 
the  other,  and  that  one  or  all  combined  may  not  affect  the  people. 
We  know  that  the  rejjresentatives,  or  the  members  of  the  General 
Assembly,  represent  more  perfectly  the  will  of  the  whole;    that 
sometimes  they  come  from  the  people  in  times  of  great  political 
excitement,   when  the  entire  State   may  be   moved   by   political 
questions  that  are  of  burning  importance.     It  is  upon  these  occa- 
sions that  a  majority  of  the  Legislature  might  interfere  with  and 
trample  upon  the  rights  of  the  minority,  and  it  is  then  that  the 
Governor,  whose  term  of  office  is  longer  than  that  branch  of  the 
Legislature  which  reflects  most  perfectly  the  will  of  tlic  peo[)lc,  would 


446 


American   Government  and   Politics 


An  argu- 
ment for  re- 
passage  by 
majority 
vote. 


be  most  likely  to  stand  impartial.  The  possession  of  power  makes 
one  conservative.  The  instances  are  numerous  in  which  men 
comparatively  of  no  character  have  been  placed  in  important 
positions,  men  who  were  radical  in  their  opinions,  and  the  moment 
they  have  accepted  a  position  of  responsibility  and  power,  they 
have  become  conservative  in  their  actions.  The  Governor  of 
Kentucky  is  the  representative  of  the  entire  State.  He  represents 
every  party  in  the  State.  He  represents  not  singly  the  Demo- 
cratic party  or  the  Republican  party,  or  any  other  party;  but  he 
stands  there  as  the  representative  of  all ;  and  if  in  a  time  of  public 
heat  and  party  passion  persons  composing  the  General  Assembly 
should  be  tempted  to  do  something  which  they  would  not  in  calmer 
moments,  it  seems  to  me  that  the  Governor,  more  than  any  one 
else,  would  be  likely  to  repress  the  inclination  to  do  wrong  by  the 
proper  exercise  of  his  veto  power. 

Mr,  Beckner.  If  the  gentleman's  amendment  prevails,  the 
Governor  may  say  that  no  bill  shall  be  passed  until  two-thirds  of 
the  members  of  both  Houses  elected  shall  have  voted  for  it,  which 
would  be  a  destruction  of  the  majority  rule,  and  would  be  the 
most  serious  innovation  upon  our  system  of  Government  that 
could  be  made.  The  veto  power  is  given  simply  for  the  purpose 
of  calling  the  attention  of  the  Legislature  to  inadvertences;  to 
mistakes  or  to  errors  it  may  commit  through  want  of  proper  con- 
sideration, and  not  to  give  the  Governor  more  power  than  the 
General  Assembly  has,  or,  in  other  words,  the  people,  through 
their  representatives,  have.  It  is  conferred  in  order  that  someone 
who  has  a  cool  head,  who  reads  carefully  what  they  do,  may  calmly 
consider  and  call  their  attention  to  an  error  in  the  bill  they  may 
have  passed;  and  the  representatives  of  the  people  have  almost 
always  responded  by  refusing  to  pass  a  bill  where  a  mistake  had 
been  made.  If  the  Governor,  however,  should  be  mistaken  in 
his  view,  there  are  one  hundred  and  thirty-eight  representatives 
of  the  people  who  sit  in  this  hall,  and  in  the  hall  across  the  way, 
who  will  correct  this  mistake,  and  pass  the  bill,  as  they  ought  to 
have  the  right  to  do;    and  I  cannot  imagine  any  greater  mistake 


The  State   Executive   Department  447 

that  we  could  make  than  to  say  that  the  people  shall  not  rule 
through  a  majority  of  their  representatives. 

This  passage  from  a  veto  message  of  Governor  Black  of  New 
York  illustrates  the  exercise  of  the  important  power  of  vetoing  items 
in  the  general  appropriation  bill :  — 

Eleventh  —  "  For  the  faculty  of  the  medical  department  of  the  Appropria- 
university  of  Buffalo,  for  the  equipment  and  maintenance  of  a  ^'°"  °^. 
laboratory  to  be  devoted  to  an  investigation  into  the  causes,  na-  vestigation. 
ture,  mortality,  rate  and  treatment  of  cancer;   and  the  salaries  of 
officials  of  the  same,  ten  thousand  dollars;   same  to  be  paid  upon 
vouchers  officially  signed  by  the  director  of  said  laboratory,  or, 
in  his  absence,  by  the  secretary  and  treasurer  of  the  faculty." 

I  cannot  approve  a  proposed  policy  which  requires  the  State  to 
engage  in  the  investigation  of  the  causes  of  various  diseases  with 
which  the  human  family  is  afflicted.  I  think  that  the  interest  of 
the  people  themselves  and  the  skill,  intelligence  and  enterprise  of 
the  physicians  may  be  depended  upon  to  make  such  investigation. 

176.    The  Call  of  an  Extraordinary  Session 

The  following  document  shows  how  the  governor  of  New  York 
may  call  an  extra  session  of  the  legislature  and  urge  upon  it  the 
consideration  of  some  special  questions :  — 

State  of  New  York,  Executive  Chamber. 
Albany,  May  22,  1899. 
To  THE  Legislature  : 

I  have  called  you  together  in  Extraordinary  Session  for  the 
purpose  of  considering  the  subject  of  the  taxation  of  franchises. 

My  message  to  the  Legislature  of  March  27,  1899,  ran  in  part  as  Message  to 

follows:  thelegisla- 

ture  in  extra 

"  At  present  the  farmers,  the  market  gardeners  and  the  mechanics  session. 
and  tradesmen  having  small  holdings,  are  paying  an  impro[)er  and 
excessive  portion  of  the  general  taxes,  while  at  the  same  time  many 
of  the  efforts  to  remedy  this  state  of  affairs,  notably  in  the  direction 
of  taxing  securities,  are  not  only  unwise,  but  inefficient,  and  often 
serve  merely  to  put  a  premium  upon  dishonesty.  .  .  . 


448 


American  Government  and  Politics 


Statement 
of  the  reasons 
for  pardon. 


"  It  yet  remains  true  that  a  corporation  which  derives  its  powers 
from  the  State,  should  pay  to  the  State  a  just  percentage  of  its 
earnings  as  a  return  for  the  privileges  it  enjoys.  This  should  be 
especially  true  for  the  franchises  bestowed  upon  gas  companies, 
street  railroads  and  the  like.  The  question  of  the  municipal 
ownership  of  these  franchises  cannot  be  raised  with  propriety  until 
the  governments  of  all  municipalities  show  greater  wisdom  and 
virtue  than  has  been  recently  shown,  for  instance,  in  New  York 
City ;  and  the  question  of  laying  and  assessing  the  tax  for  franchises 
of  every  kind  throughout  the  State  should  in  my  opinion  be  de- 
termined by  the  State  itself.  I  need  not  point  out  to  you  that  in 
foreign  communities  a  very  large  percentage  of  the  taxes  comes 
from  corporations  which  use  the  public  domain  for  pipes,  tracks 
and  the  like."  .  .  . 

Accordingly  I  recommend  the  enactment  of  a  law  which  shall 
tax  all  these  franchises  as  realty,  which  shall  provide  for  the  assess- 
ment of  the  tax  by  the  Board  of  State  Tax  Commissioners  and 
which  shall  further  provide  that  from  the  tax  thus  levied  for  the 
benefit  of  each  locality  there  shall  be  deducted  the  tax  now  paid 
by  the  corporation  in  question  to  the  locality.  Furthermore,  as 
the  time  for  assessing  the  largest  and  wealthiest  corporations,  those 
of  New  York  and  Buffalo,  has  passed  for  this  year,  and  as  it  will 
be  preferable  not  to  have  the  small  country  corporations  taxed 
before  the  larger  corporations  of  the  cities  are  taxed,  I  suggest  that 
the  operation  of  the  law  be  deferred  until  October  first,  of  this 
year.  Theodore  Roosevelt. 

177.   An  Exercise  of  the  Pardoning  Power 

The  way  in  which  a  governor  may  use  his  pardoning  power  to 
mitigate  the  rigors  of  the  law  is  illustrated  by  the  following  paper 
issued  by  Mr.  Roosevelt  as  governor  of  New  York  in  1900. 

July  27,  1900.  Edward  Wise.  Sentenced  March  31,  1899, 
to  be  executed ;  county.  New  York ;  crime,  murder,  first  degree ; 
prison.  Sing  Sing.  Commuted  to  imprisonment  for  life.  Wise 
was  convicted  of  murder  in  the  first  degree  for  causing  the  death  of 


The  State   Executive   Department  449 

Charles  F.  Beasley  while  attempting  to  rob  him  on  one  of  the  public 
streets  of  the  city  of  New  York.  The  evidence  given  upon  the 
trial  together  with  additional  evidence  adduced  upon  the  applica- 
tion for  clemency  shows  that  the  crime  was  committed  by  Wise 
in  company  with  a  confederate  named  Sweeney.  There  was  no 
thought  of  kiUing  Beasley  or  of  doing  him  bodily  harm,  but,  while 
they  were  engaged  in  the  attempt  to  rob  him,  Sweeney  struck  him  a 
blow  which  felled  him  to  the  ground,  and  his  head  coming  violently 
against  the  pavement  his  skull  was  fractured,  resulting  in  his  death. 
Wise  was  taken  into  custody  at  once,  but  Sweeney  escaped.  Legally 
Wise  was  no  doubt  as  fully  responsible  for  Sweeney's  act  in  strik- 
ing Beasley  and  for  the  consequences  of  it  as  if  he  had  himself 
delivered  the  blow,  although  in  fact  he  in  no  way  consented  to  it, 
and  had  not  contemplated  anything  of  the  kind.  And  although  the 
killing  of  Beasley  was  altogether  unintentional  and  occurring  as  it 
did  quite  in  the  nature  of  an  accident,  still  those  by  whose  act  it 
was  brought  about  were,  under  the  statute,  guilty  of  murder  in  the 
first  degree,  being  at  the  time  engaged  in  the  commission  of  a  felony. 
But  in  view  of  all  the  circumstances,  death,  the  only  penalty  pre- 
scribed by  law  for  the  offense,  seems  too  stern  and  severe,  and  some 
mitigation  is  due  by  way  of  executive  clemency.  Imprisonment 
for  life  will  be  fully  commensurate  with  Wise's  guilt  and  sufficient 
for  all  the  demands  of  justice. 

178.   Martial  Law 

Whenever  the  governor  of  a  state,  in  the  exercise  of  the  power 
bestowed  upon  him  by  the  constitution,  establishes  martial  law, 
he  usually  issues  a  proclamation  in  the  following  tenor :  — 

December  4,  1903. 
Whereas,  said  destruction  of  property  with  attendant  loss  of  Reasons  for 
life  by  mob  violence,  as  above  set  forth,  is  but  a  repetition  of  out-   menial  law. 
rages  covering  a  long  period  of  time  just  past  in  said  county,  dur- 
ing which  time  citizens  have  lost  their  lives  without  the  offenders 
being  apprehended  or  punished  therefor;    and 


450 


American   Government  and   Politics 


Civil  and 
criminal  law 
subject  to 
military 
necessity. 


Martial  law 
extends  to 
property  and 
persons. 


Whereas  the  civil  authorities  have  shown  themselves  either  unable 
to  deal  with  these  criminals  and  bring  them  to  punishment  or  else 
are  unwiUing  to  perform  their  duty,  by  reason  of  threats  and  in- 
timidations, or  through  fear  or  subserviency  to  such  body  of  law- 
less and  armed  men,  so  that  a  state  of  lawlessness  exists  in  said 
county  of  Teller,  the  laws  are  set  at  defiance,  and  the  citizens  are 
unable  to  enjoy  the  rights  guaranteed  them  by  the  constitution  and 
laws  of  this  State,  and  by  reason  of  these  conditions  it  appears 
that  life  and  property  are  unsafe  in  said  county;   and 

Whereas,  I  have  reason  to  believe  that  similar  outrages  may  occur 
at  any  time,  and  believing  the  civil  authorities  of  said  county  of 
Teller  are  utterly  unable,  unwilling  and  are  making  no  practical 
attempt  to  preserve  order  and  to  protect  Hfe  and  property : 

Now,  therefore,  I,  James  H.  Peabody,  governor  of  the  State  of 
Colorado,  by  virtue  of  the  authority  in  me  vested,  do  hereby 
proclaim  and  declare  the  said  county  of  Teller,  in  the  State  of 
Colorado,  to  be  in  a  state  of  insurrection  and  rebellion. 

The  impHcations  of  martial  law  are  thus  indicated  by  the  in- 
structions furnished  to  the  troops  by  General  Sherman  Bell  acting 
under  the  above  proclamation :  — 

The  county  of  Teller,  in  consequence  of  the  occupation  by  the 
militia,  is  subject  to  the  supreme  military  authority  and  control 
when  necessity  requires  and  occasion  demands,  and  it  becomes 
necessary  to  suspend,  in  part  or  in  its  entirety,  by  the  occupying 
military  authority,  the  criminal  and  civil  law  and  the  domestic 
administration  and  government  in  the  occupied  place  or  territory, 
and  to  substitute  military  rule  and  force  for  the  same,  as 
well  as  in  the  dictation  of  general  laws,  as  far  as  mihtary  necessity 
requires  this  suspension,  substitution  or  dictation.  The  miUtia 
may  proclaim  that  the  administration  of  all  civil  and  penal  law  shall 
continue  either  wholly  or  in  part  as  in  times  of  peace,  unless  other- 
Viise  ordered  by  the  military  authorities. 

As  martial  law  is  executed  by  military  force  it  is  incumbent  upon 
those  who  administer  it  to  be  strictly  guided  by  the  principles  of 


The  State   Executive   Department  451 

justice,  honor,  and  humanity  —  virtues  adorning  a  soldier  even 
more  than  other  men.  To  preserve  law  and  order  is  paramount 
to  all  other  considerations.  All  civil  and  penal  law  shall  continue 
to  take  its  usual  course,  unless  interrupted  or  entirely  stopped  by 
order  of  the  occupying  military  power.  Martial  law  extends  to 
both  property  and  persons.  Whenever  possible  martial  law  is 
carried  out  in  cases  of  individual  offenders  by  military  court,  under 
military  jurisdiction,  which  is  twofold. 

Military  offenses  must  be  tried  Under  and  punished  in  accordance  Liinits  of 
with  the  rules  and  articles  of  war  governing  the  armies  of  the  United  ^Ves^^^y 
States,  and  incidentally  the  National  Guard  of  the  United  States 
and  Territories  and  the  District  of  Columbia,  under  the  Dick  bill. 
Military  necessity  admits  of  all  direct  destruction  of  life  and  limb 
of  armed  enemies,  and  other  persons  whose  destruction  is  inci- 
dentally unavoidable.  Military  necessity  does  not  admit  of  cruelty. 
It  does  not  admit  of  the  use  of  poison  in  any  way.  It  admits  of 
deception,  but  disclaims  acts  of  perfidy.  It  is  not  carried  on  by 
arms  alone.  .  .  . 

Every  able-bodied  male  citizen  of  Colorado,  and  those  who  have  Citizens 
declared  their  intention  to  become  citizens  of  the  United  States,   military 
residing  therein,  between  the  ages  of  18  and  45  years,  except  per-  duty, 
sons  exempt  by  law,  are  subject  to  military  duty  and  are  likewise 
subject  to  military  enrollment  and  to  pay  military  poll  tax.     The 
adjutant-general  is  empowered  with  the  enforcement  and  collection 
of  this  tax  of  $1  from  each  person,  and  the  failure  or  refusal  to  pay 
same  is  punishable  by  both  fine  and  otherwise. 

Every  law-abiding  citizen  in  the  county  of  Teller  and  State  of  The  law 
Colorado,  if  he,  she,  or  they  are  engaged  in  any  legitimate  obeyed, 
business,  no  matter  what  their  vocation  in  Hfe,  regardless  of  their 
union  or  nonunion  affiliation  and  creed,  shall  first  obey  the  laws 
of  the  land,  those  of  Colorado  and  the  United  States  of  America 
included ;  and  no  one  shall  be  interfered  with  nor  in  any  wise  mo- 
lested at  any  time  during  the  day  or  night,  under  penalty  of  mili- 
tary law,  rule,  discipline  and  protection.  .  .  . 

Sherman  M.  Bell. 


452 


American   Government  and   Politics 


Corporations 
entitled  to 
equal  protec- 
tion of  the 
law. 


An  unreason- 
able classifi- 
cation. 


179.   Legal  Advice  to  the  Governor 

It  is  the  duty  of  a  governor  to  veto  a  measure  which  he  believes 
to  be  palpably  unconstitutional,  and  he  may  secure  expert  advice 
on  any  bill  by  submitting  it  to  the  attorney-general.  This  report 
from  the  attorney-general  of  Iowa  to  the  governor  illustrates  the 
practice :  — 

Sir  —  Complying  with  your  request,  I  herewith  submit  a  brief 
as  to  the  constitutionality  of  House  file  No.  78  relating  to  the  place 
where  action  can  be  commenced  upon  promissory  notes  made  to 
insurance  companies. 

At  the  outset  of  "this  question  two  fundamental  propositions  are 
presented : 

First  —  That  corporations  are  persons  within  the  provisions  of 
the  fourteenth  amendment  of  the  Constitution  of  the  United  States, 
and  that  the  rights  and  securities  guaranteed  to  persons  by  that 
instrument  cannot  be  disregarded  in  respect  to  these  artificial 
entities,  any  more  than  they  can  be  in  respect  to  the  individuals  who 
are  the  equitable  owners  of  the  property  belonging  to  such  corpo- 
rations. A  state  has  no  more  power  to  deny  corporations  equal 
protection  of  the  law  than  it  has  to  deny  such  protection  to  in- 
dividual citizens.  .  .  . 

Second  —  All  classification  for  legislative  purposes  must  have 
seme  reasonable  basis  upon  which  to  stand.  It  must  always  rest 
upon  some  difference  which  bears  a  reasonable  and  just  relation 
to  the  act  in  respect  to  which  the  classification  is  proposed,  and  can 
never  be  made  arbitrarily  and  without  such  basis.  .  .  .  No  valid 
reason  can  be  given  why  a  promissory  note,  executed  and  delivered 
in  consideration  of  a  contract  of  insurance,  should  not  stand  upon 
the  same  footing,  so  far  as  the  right  of  the  holder  to  transfer  the 
same  is  concerned,  as  a  note  given  for  any  commodity  or  for  any 
other  valid  consideration.  The  act  of  the  legislature  attempts  to 
create  a  distinction  and  classification  between  one  class  of  corpora- 
tions and  other  persons  within  the  state  which  does  not  exist 
naturally  or  furnish  a  reasonable  basis  for  separate  laws  and  regu- 


The  State   Executive  Department  453 

lations.  The  classification  is  unnatural  and  arbitrary,  as  there 
exists  no  substantial  distinction  between  promissory  obligations 
and  other  property  held  by  an  insurance  company,  and  obligations 
and  property  held  by  other  corporations  within  the  state. 

For  the  reason  that  the  act  thus  arbitrarily  attempts  a  classifica-  '^he  act  in 
tion  of  corporations  as  to  property  owned  and  held  by  them  which  invalid, 
does  not  naturally  exist,  and  is  not  framed  so  as  to  extend  to  and 
embrace  equally  all  persons  who  are  or  may  be  in  the  like  situa- 
tion, and  abridges  the  right  of  such  corporations  to  sell  and  transfer 
property  legally  held  by  them  under  the  law  of  the  state,  the  act  is, 
in  my  opinion,  invalid  under  the  fourteenth  amendment  of  the 
Constitution  of  the  United  States  and  section  i  of  article  i  of  the 
constitution  of  the  state  of  Iowa. 

Respectfully  submitted, 

Chas.  W.  Mullan, 
A  ttorney-General. 
May  7,  1902, 
To  the  Honorable  A.  B.  Cummins, 
Governor  of  Iowa. 

180.   Government  by  Commission 

One  of  the  striking  features  of  recent  developments  in  state 
administration  is  the  increase  in  the  number  of  commissions 
charged  with  various  functions  relating  to  the  execution  of  the 
law.  This  tendency  was  deprecated  by  Mr.  Dean  in  the  New 
York  constitutional  convention  of  1894:  — 

Mr.  Dean.     The  question  has  been  asked  is  it  advisable  to  Commis- 

,     ,.  ,      ,  .     .  ,.  ,  ,11  e    sions  con- 

abolish  the  commissions;  are  they  not  necessary  to  the  scheme  of  ^^  ^^ 
government?  There  are,  I  believe,  fifteen  commissions  in  this  American 
State,  including  the  State  Board  of  Pharmacy,  and  of  this  number 
eleven  have  been  created  since  1880.  .  Prior  to  that  time,  with  the 
exception  of  those  created  from  among  the  State  officers,  a  com- 
mission was  almost  unknown  in  this  State,  and  a  permanent  com- 
mission, involving  expenditures  to  the  state,  was  almost  without 
precedent.     That  they  arc  contrary  to  the  spirit  of  our  institutions, 


institutions. 


454 


American   Government  and   Politics 


Why  com- 
missions are 
created. 


An  un- 
salaried 
commission. 


I  believe,  will,  on  reflection,  be  conceded.  They  are  not  represen- 
tative in  their  membership,  because  they  are  made  by  appointment ; 
they  are  not  judicial  in  their  functions,  because  they  have  no  power 
to  enforce  their  decrees  or  rulings,  and  they  are  not  executive  in 
character,  because  they  have  be^m  selected  upon  the  theory  that 
they  were  in  some  manner  to  represent  something;  and  have  been 
denied  the  power  to  enforce  anything.  They  are  in  effect  a  con- 
fused and  useless  jumble  of  representative,  judicial  and  executive 
functions,  witliout  the  merits,  and  with  all  the  demerits  incident 
to  co-ordinate  branches  of  government.  They  are  not  responsible 
to  constituencies  as  representative  bodies;  have  no  character  in 
their  quasi-judicial  functions,  and,  as  executive  oflicers,  there  is 
too  much  of  a  division  of  res[)onsibility  to  be  effective,  even  were 
they  given  authority  under  the  laws  creating  them. 

They  are,  as  a  matter  of  fact,  the  creatures  of  legislative  cowardice 
and  incompetency.  Every  time  a  popular  clamor  arises  some 
member  of  the  Legislature,  lacking  the  courage  or  the  capacity 
to  deal  with  the  subject,  proposes  the  formation  of  a  commission 
to  take  charge  of  the  matter,  and  the  action  having  a  long  line  of 
precedents,  and  following  the  line  of  least  resistance,  a  commission 
is  raised.  To  this  body  is  delegated  just  enough  powers  and  duties 
to  keep  it  in  existence  without  accomplishing  any  solution  of  the 
question,  and  drawing  their  pay  from  the  railroad  corporations, 
or  being  paraded  before  the  world  in  many  cases  as  serving  without 
salaries,  a  di\nn  upon  the  resources  of  the  State  is  effected  which 
few  people  know  anything  about.  Here  is  what  the  report  of  the 
Comptroller  sliows,  in  Document  No.  20,  now  before  the  Con- 
vention: "State  Railroad  Commissions.  Salary  and  expenses  of 
the  oflice  — $25,285.36  in  1883,  $66,225.37  in  1884,  $65,023.50  in 
1885,  $68,509.25  in  1886,  $62,443.25  in  1887,  $52,434.55  in  1888, 
$53,987.07  in  1889,  $52,024.^32  in  1890,  $67,660.66  in  1891,  $56,- 
609.10  in  1892,  $56,405.56  in  1893,  making  a  total  of  $626,553.99 
in  the  eleven  years.  .  .  ." 

Then  there  is  the  Commission  of  Fisheries.  This  commission 
serves  without  salaries,  and  might  be  supposed  to  be  a  very  inno- 


The  State   Executive   Department  455 

cent  institution,  but  the  report  of  the  Comptroller,  in  Document 
No.  20,  informs  us  that  it  has  cost  the  State  the  following  sums: 
Game  and  Fish  Protectors  —  $306.70  in  1880,  $5,536.82  in  1881, 
$6,102.70  in  1882,  $6,084.71  in  1883,  $9,938.42  in  1884,  $11,205.67 
in  1885,  $12,025.86  in  1886,  $10,058.12  in  1887,  $11,882.76  in 
1888,  $16,190.35  in  1889,  $17,157.70  in  1890,  $16,409.04  in  1891, 
$18,492.50  in  1892,  $23,958.65  in  1893,  making  a  total  of  $165,290 
in  the  thirteen  years.  .  .  . 

By  the  same  report  from  which  these  figures  are  gleaned,  it  is  Rapid 
stated  that  the  new  offices  created  since  1890,  the  most  of  which  are  Commissions, 
commissions,  cost  in  1893  a  total  of  $1,027,654.31,  making  a  grand 
total  for  the  thirteen  years  of  $6,847,892.72.  These  seven  leading 
commissions  alone,  the  Game  and  Fish  Protectors,  the  Civil 
Service  Commission,  the  Niagara  Reservation  Commission,  the 
Commission  in  Lunacy,  the  Board  of  Arbitration,  the  Forestry 
Commission  and  the  Railroad  Commission  aggregate  an  annual 
charge  of  $218,364,  and  I  submit  that  fully  one-half  of  this  ex- 
penditure has  no  practical  utility  beyond  affording  a  place  for 
some  one  at  the  expense  of  the  taxpayers  of  the  State,  or,  what 
amounts  to  the  same  thing  in  the  long  run,  out  of  the  treasury  of 
the  private  corporations. 

I  think  it  will  be  conceded  that  any  system  of  offices  which  per-   Responsible 
mits  of  the  rapid  and  continual  increase  in  expenditures  shown  by   ^"i."^}^  [j 
the  figures  which  I  have  quoted,  is  not  calculated  to  build  up  the  supersede 
public  service,   or  to  produce  an  economical  administration  of  commissions, 
public  affairs.     The  proposal  under  consideration  does  not  con- 
template crippling  the  public  service  in  any  degree;    it  does  not 
propose  to  take  from  the  Legislature  the  legitimate  power  to  create 
offices  which  may  from  time  to  time  become  necessary.     It  simply 
abolishes  the  commissions  which  are  at  present  in  being,  except 
those  created  of  elective  State  officers,  and  leaves  to  the  Legislature 
the  power  and  the  duty  to  create  responsible  public  officials  in  the 
place  of  irresponsible  commissions,  at  the  same  time  insisting  that 
the  State  shall  not  enter  into  partnership  with  any  individual, 
association  or  corporation  in  the  payment  of  its  pubhc  officials 


456  American   Government  and   Politics 

for  their  services.  This  is  not  a  radical  innovation ;  it  is  simply  a 
return  to  correct,  first  principles  in  government,  and  there  can  be  no 
higher  duty  than  to  preserve  the  highest  dignity  and  the  highest 
utility  for  our  public  servants,  a  condition  which  cannot  exist  under 
the  rule  of  irresponsible  commissions. 


CHAPTER  XXV 

THE   STATE   LEGISLATURE 

i8i.   Special  Limitations  on  the  Legislature 

The  prevalent  distrust  of  state  legislatures  has  led  to  attempts 
to  restrict  their  opportunity  for  evil  by  placing  in  the  constitu- 
tions fundamental  and  detailed  limitations  on  their  powers.  The 
general  character  of  these  limitations  may  be  gathered  by  a  study 
of  the  following  provisions  from  the  constitution  of  New  York :  — 

Article  III 

§  II.   Each  house  shall  keep  a  journal  of  its  proceedings,  and   General 
publish  the  same,  except  such  parts  as  may  require  secrecy.     The  ^s  to  pro- 
doors  of  each  house  shall  be  kept  open,  except  when  the  public   cedure. 
welfare  shall  require  secrecy.     Neither  house  shall,  without  the 
consent  of  the  other,  adjourn  for  more  than  two  days. 

§12.  For  any  speech  or  debate  in  either  house  of  the  Legislature, 
the  members  shall  not  be  questioned  in  any  other  place. 

§  13.  Any  bill  may  originate  in  either  house  of  the  Legislature, 
and  all  bills  passed  by  one  house  may  be  amended  by  the  other. 

§  14.  The  enacting  clause  of  all  bills  shall  be  "The  People  of 
the  State  of  New  York,  represented  in  Senate  and  Assembly,  do 
enact  as  follows,"  and  no  law  shall  be  enacted  except  by  bill. 

§  15.  No  bill  shall  be  passed  or  become  a  law  unless  it  shall  have 
been  printed  and  upon  the  desks  of  the  members,  in  its  final  form, 
at  least  three  calendar  legislative  days  prior  to  its  final  passage, 
unless  the  Governor,  or  the  acting  Governor,  shall  have  certified 
to  the  necessity  of  its  immediate  passage,  under  his  hand  and  the  seal 
of  the  State ;  nor  shall  any  bill  be  passed  or  become  a  law,  except 
by  the  assent  of  a  majority  of  the  members  elected  to  each  branch 

457 


45  B  American  Government  and  Politics 

of  the  Legislature ;  and  upon  the  last  reading  of  a  bill,  no  amendment 
thereof  shall  be  allowed,  and  the  question  upon  its  final  passage 
shall  be  taken  immediately  thereafter,  and  the  yeas  and  nays 
entered  on  the  journal. 

§  i6.  No  private  or  local  bill,  which  may  be  passed  by  the  Legis- 
lature, shall  embrace  more  than  one  subject,  and  that  shall  be  ex- 
pressed in  the  title. 

§  17.   No  act  shall  be  passed  which  shall  provide  that  any  exist- 
ing law,  or  any  part  thereof,  shall  be  made  or  deemed  a  part  of 
said  act,  or  which  shall  enact  that  any  existing  law,  or  part  thereof, 
shall  be  applicable,  except  by  inserting  it  in  such  act. 
Prohibition  §  18.   The  Legislature  shall  not  pass  a  private  or  local  bill  in 

andTocal         ^^X  ^^  ^^^  following  cases : 

bills.  Changing  the  names  of  persons. 

Laying  out,  opening,  altering,  working  or  discontinuing  roads, 
highways  or  alleys,  or  for  draining  swamps  or  other  low  lands. 

Locating  or  changing  county  seats. 

Providing  for  changes  of  venue  in  civil  or  criminal  cases. 

Incorporating  villages. 

Providing  for  election  of  members  of  boards  of  supervisors. 

Selecting,  drawing,  summoning,  or  impaneling  grand  or  petit 
jurors. 

Regulating  the  rate  of  interest  on  money. 

The  opening  and  conducting  of  elections  or  designating  places  of 
voting. 

Creating,  increasing  or  decreasing  fees,  percentages  or  allowances 
of  public  officers,  during  the  term  for  which  said  officers  are  elected 
or  appointed. 

Granting  to  any  corporation,  association  or  individual  the  right 
to  lay  down  railroad  tracks. 

Granting  to  any  private  corporation,  association  or  individual 
any  exclusive  privilege,  immunity  or  franchise  whatever. 

Granting  to  any  person,  association,  firm  or  corporation,  an 
exemption  from  taxation  on  real  or  personal  property. 

Providing  for  building  bridges,  and  chartering  companies  for 


The   State   Legislature  4^9 

such  purposes,  except  on  the  Hudson  River  below  Waterford, 
and  on  the  East  River,  or  over  the  waters  forming  a  part  of  the 
boundaries  of  the  state. 

The  legislature  shall  pass  general  laws  providing  for  the  cases  Protection 
enumerated  in  this  section,  and  for  all  other  cases  which  in  its  °j  P"^^'*^ 
judgment  may  be  provided  for  by  general  laws.  But  no  law  shall  * 
authorize  the  construction  or  operation  of  a  street  railroad  except 
upon  the  condition  that  the  consent  of  the  owners  of  one-half  in 
value  of  the  property  bounded  on,  and  the  consent  also  of  the  local 
authorities  having  the  control  of,  that  portion  of  a  street  or  highway 
upon  which  it  is  proposed  to  construct  or  operate  such  railroad  be 
first  obtained,  or  in  case  the  consent  of  such  property  owners 
cannot  be  obtained,  the  Appellate  Division  of  the  Supreme  Court, 
in  the  department  in  which  it  is  proposed  to  be  constructed,  may, 
upon  apphcation,  appoint  three  commissioners  who  shall  determine, 
after  a  hearing  of  all  parties  interested,  whether  such  railroad 
ought  to  be  constructed  or  operated,  and  their  determination, 
confirmed  by  the  court,  may  be  taken  in  Heu  of  the  consent  of  the 
property  owners. 

§  19.  The  legislature  shall  neither  audit  nor  allow  any  private 
claim  or  account  against  the  State,  but  may  appro{)riate  money  to 
pay  such  claims  as  shall  have  been  audited  and  allowed  according 
to  law. 

§  20.  The  assent  of  two-thirds  of  the  members  elected  to  each  Restrictions 
branch  of  the  legislature  shall  be  requisite  to  every  bill  appropriat-  jq  appropri- 
ing  the  public  moneys  or  property  for  local  or  private  purposes.       ate  money. 

§  21.  No  money  shall  ever  be  paid  out  of  the  treasury  of  this 
State,  or  any  of  the  funds  under  its  management,  except  in  pursu- 
ance of  an  appropriation  by  law;  nor  unless  such  payment  be 
made  within  two  years  next  after  the  passage  of  such  appropriation 
act;  and  every  such  law  making  a  new  appropriation,  or  continu- 
ing or  reviving  an  appropriation,  shall  distinctly  specify  the  sum 
appropriated,  and  the  object  to  which  it  is  to  be  applied ;  and  it 
shall  not  be  sufficient  for  such  law  to  refer  to  any  other  law  to  fix 
such  sum. 


460 


American  Government  and  Politics 


§  22.  No  provision  or  enactment  shall  be  embraced  in  the  annual 
appropriation  or  supply  bill,  unless  it  relates  specifically  to  some 
particular  appropriation  in  the  bill;  and  any  such  provision  or 
enactment  shall  be  limited  in  its  operation  to  such  appropriation. . . . 

§  24.  Every  law  which  imposes,  continues  or  revives  a  tax  shall 
distinctly  state  the  tax  and  the  object  to  which  it  is  to  be  applied, 
and  it  shall  not  be  sufficient  to  refer  to  any  other  law  to  fix  such  tax 
or  object. 

§  25.  On  the  final  passage,  in  either  house  of  the  Legislature, 
of  any  act  which  imposes,  continues  or  revives  a  tax,  or  creates  a 
debt  or  charge,  or  makes,  continues  or  revives  any  appropriation 
of  public  or  trust  money  or  property,  or  releases,  discharges  or 
commutes  any  claim  or  demand  of  the  State,  the  question  shall  be 
taken  by  yeas  and  nays,  which  shall  be  duly  entered  upon  the 
journals,  and  three-fifths  of  all  the  members  elected  to  either  house 
shall,  in  all  such  cases,  be  necessary  to  constitute  a  quorum  therein. 


The  credit 
of  the  state. 

Limit  on 
state  debt. 


Article  VII 

Sec.  I.  The  credit  of  the  State  shall  not  in  any  manner  be  given 
or  loaned  to  or  in  aid  of  any  individual,  association  or  corporation. 

§  2.  The  State  may,  to  meet  casual  deficits  or  failures  in  reve- 
nues, or  for  expenses  not  provided  for,  contract  debts;  but  such 
debts,  direct  or  contingent,  singly  or  in  the  aggregate,  shall  not 
at  any  time  exceed  one  million  of  dollars ;  and  the  moneys  arising 
from  the  loans  creating  such  debts  shall  be  applied  to  the  purpose 
for  wlilch  they  were  obtained,  or  to  repay  the  debt  so  contracted, 
and  to  no  other  purpose  whatever. 

§  3.  In  addition  to  the  above  limited  power  to  contract  debts, 
the  State  may  contract  debts  to  repel  invasion,  suppress  insur- 
rection, or  defend  the  State  in  war;  but  the  money  arising  from 
the  contracting  of  such  debts  shall  be  ai)i)lied  to  the  purpose  for 
which  it  was  raised,  or  to  repay  such  debts,  and  to  no  other  pur- 
pose whatever. 

§  4.     Except  the  debts  specified  in  sections  two  and  three  of 


The  State  Legislature  461 

this  article,  no  debts  shall  be  hereafter  contracted  by  or  in  behalf  Provisions 
of  this  State,  unless  such  debts  shall  be  authorized  by  a  law,  for  indebted- 
some  single  work  or  object  to  be  distinctly  specified  therein;  and  iiess. 
such  law  shall  impose  and  provide  for  the  collection  of  a  direct 
annual  tax  to  pay,  and  sufficient  to  pay,  the  interest  on  such  debt 
as  it  falls  due,  and  also  to  pay  and  discharge  the  principle  of  such 
debt  within  fifty  years  from  the  time  of  the  contracting  thereof. 
No  such  law  shall  take  effect  until  it  shall,  at  a  general  election, 
have  been  submitted  to  the  people,  and  have  received  a  majority 
of  all  the  votes  cast  for  and  against  it  at  such  election.  On  the 
final  passage  of  such  bill  in  either  house  of  the  legislature,  the 
question  shall  be  taken  by  ayes  and  noes,  to  be  duly  entered  on  the 
journals  thereof,  and  shall  be:  "Shall  this  bill  pass,  and  ought 
the  same  to  receive  the  sanction  of  the  people  ?  "  The  legislature 
may  at  any  time,  after  the  approval  of  such  law  by  the  people,  if 
no  debt  shall  have  been  contracted  in  pursuance  thereof,  repeal 
the  same;  and  may  at  any  time,  by  law,  forbid  the  contracting  of 
any  further  debt  or  liability  under  such  law ;  but  the  tax  imposed 
by  such  act,  in  proportion  to  the  debt  and  liability  which  may 
have  been  contracted  in  pursuance  of  such  law,  shall  remain  in  force 
and  be  irrepealable,  and  be  annually  collected,  until  the  proceeds 
thereof  shall  have  made  the  provision  hereinbefore  specified  to 
pay  and  discharge  the  interest  and  principal  of  such  debt  and 
liability.  The  money  arising  from  any  loan  or  stock  creating 
such  debt  or  liability  shall  be  applied  to  the  work  or  object  speci- 
fied in  the  act  authorizing  such  debt  or  liability,  or  for  the  pay- 
ment of  such  debt  or  liability,  and  for  no  other  purpose  whatever. 
No  such  law  shall  be  submitted  to  be  voted  on,  within  three 
months  after  its  passage  or  at  any  general  election  when  any  other 
law,  or  any  bill  shall  be  submitted  to  be  voted  for  or  against. 
The  legislature  may  provide  for  the  issue  of  bonds  of  the  State  to 
run  for  a  period  not  exceeding  fifty  years  in  lieu  of  bonds  hereto- 
fore authorized  but  not  issued  and  shall  impose  and  provide  for 
the  collection  of  a  direct  annual  tax  for  the  payment  of  the  same 
as  hereinbefore  required.     When  any  sinking  fund  created  under 


462 


American  Government  and  Politics 


this  section  shall  equal  in  amount  the  debt  for  which  it  was  cre- 
ated, no  further  direct  tax  shall  be  levied  on  account  of  said 
sinking  fund  and  the  legislature  shall  reduce  the  tax  to  an  amount 
equal  to  the  accruing  interest  on  such  debt. 


More  votes 
required  to 
elect  Demo- 
cratic 
senators. 


182.  Legislative  Apportionment^ 

The  problem  of  legislative  apportionment  —  one  of  the  thorny 
questions  of  American  politics  — ■  was  thoroughly  discussed  in 
the  New  York  constitutional  convention  of  1894:  — 

Mr.  Speer.  The  proposition  reported  by  your  Committee  on 
Apportionment  increases  the  Senate  from  thirty-two  to  fifty  mem- 
bers and  apportions  the  districts  so  that  thirty-two  will  be  Re- 
publican and  eighteen  Democratic,  according  to  the  approved 
estimates  of  the  experts  of  your  Republican  majority,  as  published 
in  the  New  York  Press,  a  Republican  organ.  The  assembly  is 
increased  from  128  to  150.  Of  this  150,  ninety-one  are  to  be 
Republicans  and  fifty-nine  Democrats.  Each  House  will  be 
Republican  by  over  three-fifths.  This  apportionment  is  of  such 
a  nature  that  should  the  Democrats  carry  the  State  by  a  majority 
of  120,000  they  would  not  be  able  to  control  both  Houses  of  the 
Legislature. 

Then  you  adopt  the  English  idea,  the  plan  on  which  members 
of  Parliament  were  elected  in  England's  most  corrupt  days,  of 
giving  representation  to  counties  irrespective  of  population. 
What  is  there  sacred  about  county  lines  that  you  should  so  insist 
upon  them  in  your  proposition  and  report.  The  county  of  Put- 
nam has  a  population  of  13,325,  a  third  of  the  number  to  entitle 
it  to  a  Member  of  the  Assembly,  still  you  give  Putnam  county  an 
Assemblyman.  Is  this  because  Putnam  county  is  Republican? 
Schuyler  county  has  16,326  population,  less  than  half  the  ratio 
you  have  fixed  of  38,606.  It  is  to  have  an  Assemblyman  because 
Schuyler  county  is  Republican  ? 

You  seek  to  appeal  to  prejudice  to  array  the  rural  counties  of 
the  State  against  the  cities.  You  aim  at  arousing  the  agricultural 
interests  against  the  commercial  and  industrial.     What  an  appeall 


The   State   Legislature  463 

What  a  spectacle  you  are  making  not  only  to  the  residents  of  the 
cities,  whom  you  chain  hand  and  foot,  but  to  the  rural  counties, 
whom  you  ask  to  vent  on  the  cities  the  prejudice  which  you  seek 
to  arouse.  Let  us  analyze  this  work  of  adroit  partizanship  which 
you  have  devised.  You  take  the  State  Senators  of  1892,  with  the 
citizen  population  of  the  State,  5,790,865,  and  with  fifty  Senate 
districts  make  your  ratio  115,817.  On  the  basis  of  last  fall's 
vote,  it  will  require  28,926  Democrats  to  elect  a  Democratic  State 
Senator  and  only  17,062  Republicans  to  elect  a  Republican  State 
Senator.  Three  RepubHcans  will  have  as  much  representation  as 
five  Democrats.     Such  an  apportionment  is  a  work  of  art. 

Taking  your  own  figures  as  printed  in  your  report.  Document   DiscHmina- 
No.  65,  let  us  see  where  are  the  districts  which  have  more  than   ^^^  yo"jj. 
the  ratio  and  where  are  the  districts  which  have  less.     In  Kings   City, 
county  you  have  58,264  citizens  left  over,  enough  to  be  entitled  to 
another  Senator,  a  robbery  of  one  Democratic  Senator  in  addition 
to  your  gerrymander  of  the  Brooklyn  district.     In  every  New  York 
City  district  you  have  exceeded  the  ratio  and  disfranchised  34,160 
citizens.     In    Westchester   county   you   have   exceeded   the   ratio 
13,407.     In  these  three  counties  alone,  all  of  them  Democratic, 
your  excess  is  over  100,000.  .  .  . 

Mr.  Maybee.    The  basic  idea  of  the  whole  scheme,  the  founda-   Why  should 
tion  upon  which  the  whole  scheme  rests,  is  the  great  defect  in  this   ^^j.  ^^  j^^. 
measure.     It    increases    the    number   of   Members    of   Assembly  creased? 
from  128  to  150;   it  increases  the  number  of  Senators  from  thirty- 
two  to  fifty,  an  increase  of  forty  members  of  the  Legislature,  with- 
out any  reason  whatever.     Will  any  gentleman  tell  me  what  good 
reason  exists  for  this  large  increase  in  the  membership  of  the  Leg- 
islature?    Has   there   been   anywhere   a   demand   for   it?     Have 
the  people,  by  petitions,  through  the  columns  of  the  newspapers 
anywhere,  made  a  demand  for  this  increase  ?     What  good  purpose 
does  it  subserve  ?     The  purpose  of  it  is  political  and  political  only. 
There  is  no  reason  why  an  Assembly  of  150  members  will  do  the 
business  of  the  State  any  better,  any  more  satisfactorily  than  an 
Assembly  of  128  members.     There  is  no  reason  why  a  Senate  of 


464 


American  Government  and  Politics 


Larger  con- 
stituencies 
return  better 
members. 


Local  di- 
visions are 
recognized 
in  making 
apportion- 
ments. 


fifty  members  will  do  the  business  of  the  State  with  any  greater 
satisfaction  to  the  people  of  a  State  than  a  Senate  of  thirty-two 
members. 

It  is  a  recognized  principle  in  political  history,  which  has  become 
axiomatic,  that  the  larger  the  constituency  within  a  reasonable 
limit,  the  better  representative  will  you  get.  This  is  not  denied 
by  any  students  of  political  history.  This  measure  intends  to 
narrow  the  constituencies,  not  to  broaden  them;  intends  to  make 
them  smaller,  and  not  larger;  and  for  a  political  purpose,  and  a 
political  purpose  only,  contravenes  the  well-known  theory  of 
political  history  and  political  economy  that  a  large  constituency 
is  more  apt  to  return  a  good  member  than  a  small  one.  Now,  the 
Congress  of  the  United  States  consists  of  about  350  members. 
Those  members  represent  between  sixty  and  seventy  miUions  of 
people,  and  yet  gentlemen  upon  the  other  side  of  the  House  say 
that  128  Members  of  Assembly  are  not  enough  in  number  to 
fitly  and  adequately  represent  about  six  millions  of  people. 

Mr.  Choate.  Mr.  Chairman,  it  is  not  true  that  direct  popula- 
tion, popular  count,  man  for  man,  has  ever  been  in  this  State,  the 
basis  of  representation  in  the  Legislature.  We  are  not  a  pure 
Democracy;  we  are  not  an  impure  Republic.  We  are  a  repre- 
sentative government  so  far  as  its  legislative  body  and  the  dealing 
out  of  legislative  powers  are  concerned.  For  the  great  offices  of 
State,  the  Governor  and  other  great  officers,  we  vote  man  by  man 
and  the  majority  rules.  In  the  highest  judicial  court  of  the  State 
we  vote  in  the  same  way,  popular  sovereignty,  popular  majority, 
or,  at  any  rate,  popular  plurality.  It  has  never  been  so,  it  never 
will  be  so,  it  never  can  be  so,  in  respect  to  the  Senate  and  Assembly. 
We  must  be  represented  by  districts;  we  must  be  represented  by 
counties;  we  must  be  represented  by  some  form  of  territorial 
division.  When  my  friends  on  this  side  of  the  chamber  concede, 
as  they  must  concede,  as  they  have  conceded,  that,  they  give  away 
the  whole  of  the  argument  which  Mr.  Osborn  presented,  based 
upon  equal  popular  representation.  Why,  there  is  the  little  county 
of  Putnam  of  his,  with  13,000  people  and  the  adjoining  county  of 


The  State   Legislature  465 

Westchester  with  127,000,  that,  according  to  his  theory  ought  to 
have  ten  times  as  much.  Nobody  has  ever  dreamed  under  this 
or  any  other  apportionment,  of  giving  it  more  than  three  times  as 
much. 

What  do  the  people  of  this  State  come  to  the  Legislature  for?  Counties 
To  make  laws  for  the  whole  State;  to  represent  the  whole  State,  -^ht '^''^"th 
and  each  part  of  the  State  is  interested  in  the  whole.  My  friend  legislature, 
down  here  upon  this  side  talked  as  if  all  the  wealth  accumulated 
in  the  city  of  New  York  ought  to  lie  at  the  basis  and  foundation  of 
apportionment.  Who  owns  the  magnificent  harbor  which  is  the 
foundation  of  all  her  prosperity  and  those  great  rivers  which  meet 
to  kiss  each  other  at  her  door?  Why,  the  little  county  of  Niagara 
might  just  as  well  claim  to  own  for  itself  the  Cataract  of  Niagara, 
that  other  wonder  of  the  world  at  the  other  end  of  the  State.  No, 
sir,  they  come  here  representing  these  divisions,  and  the  first  rule 
always  has  been,  and  always  will  be,  I  believe,  that  each  one  of 
these  divisions,  these  counties  which  have  been  formed  as  political 
divisions  for  the  very  purpose  of  being  the  centres  of  home  rule, 
if  you  please,  of  local  government,  —  every  one  of  them  has  the 
right,  and  the  equal  right;  and  if  there  were  but  sixty  counties, 
if  there  were  but  sixty  representatives,  they  must  be  distributed 
among  these  sixty  counties,  upon  every  doctrine  that  has  ever 
prevailed  in  this  State;  and  the  little  county  of  Putnam  in  that 
case  would  be  entitled  to  the  same  number  in  that  assembly  as 
the  great  county  of  New  York. 

Mr.  Chairman,  if  you  want  to  go,  for  example,  to  good  Demo-  Florida 
cratic  authority,  I  want  to  give  you  some  on  this  doctrine  in  support 
of  this  proposition  that  is  represented  in  this  scheme;  that  is  to 
say,  that  the  greater  the  territorial  extent  of  a  little  and  poor 
county  the  greater  shall  be  its  representation  in  the  popular  branch 
of  the  Legislature.  Florida  —  is  not  that  a  good  Democratic 
State?  Did  anybody  ever  hear  of  a  Republican  entering  its 
borders  except  for  the  purpose  of  summer  recreation  or  for  the  in- 
vestigation of  fraud?  Florida  says:  "The  repre.sentation  in  the 
House  of  Representatives  shall  be  apportioned  among  the  several 


466  American   Government  and  Politics 

counties  as  nearly  as  possible  according  to  population;  provided, 
each  county  shall  have  one  representative  at  large  in  the  House  of 
Representatives ;  and  no  county  shall  have  more  than  three  repre- 
sentatives."    Think  of  that. 

Georgia  —  is  not  that  a  good  Democratic  State  ?  Here  are 
States  that  are  all  of  one  way  of  thinking.  Georgia  apportions 
her  one  hundred  and  seventy-five  representatives  among  the  sev- 
eral counties  thus:  "To  the  six  counties  having  the  largest  popu- 
lation, three  each ;  to  the  twenty-six  counties  having  the  next 
largest  population,  two  each;  to  the  remaining  one  hundred  and 
five  counties,  one  each.  After  each  United  States  census,  the 
General  Assembly  may  change  the  above  apportionment  so  as  to 
give  to  the  six  largest  counties  three  each ;  to  the  twenty-six  next 
largest,  two  each;  but  in  no  event  shall  the  aggregate  number  of 
representatives  be  increased."     Is  that  good  Democratic  doctrine? 

183.   Legislative  Procedure 

The  importance  of  the  details  of  legislative  procedure  is  fully 
shown  by  the  following  speech  made  in  the  New  York  constitu- 
tional convention  of  1894,  by  Mr.  Vedder:  — 

Mr.  Chairman,  the  object  of  this  amendment,  I  think,  was  ap- 
parent to  each  delegate  as  it  was  read.  Under  the  Constitution, 
as  it  now  is,  a  bill  may  be  amended  upon  its  third  reading.  This 
prevents  a  bill  from  being  amended  on  its  third  reading.  Under 
the  Constitution,  as  it  now  is,  a  bill  may  be  passed  when  it  is  not 
printed.  An  amendment  may  be  made  to  it  which  changes  the 
whole  nature  of  the  bill,  and  without  any  of  the  members  of  the 
Legislature  knowing  anything  about  it,  except,  perhaps,  the  mover. 
Especially  is  this  true  during  the  last  days  of  a  session.  There 
has  probably  been  more  bad  legislation  by  reason  of  this  defect 
in  the  Constitution  than  because  of  any  other.  This  is  the  way  it 
works:  The  Clerk  announces  the  reading  of  a  bill;  he  begins  its 
reading,  and  a  member  of  the  Legislature  offers  an  amendment 
which  no  one  may  understand  but  himself,  and  the  amendment 
is  adopted,  and  the  reading  goes  on  and  the  bill  is  passed  as  amended. 


The   State   Legislature 


467 


In  the  hurry  and  probable  confusion  of  the  moment,  no  one  but  the 
mover  of  the  amendment  may  know  exactly  what  it  is  or  how  it 
affects  the  nature  and  subject-matter  of  the  bill.  It  may  radically 
change  the  bill,  and  yet  it  passes,  reliance  being  placed  on  the 
statements  of  the  mover  of  the  amendment,  who  may  himself 
have  misjudged  its  effect  in  changing  the  bill. 

This  will  prevent  that.  This  makes  it  imperative  that  every 
bill  must  have  been  printed  and  upon  the  desks  of  the  members 
at  least  one  calendar  legislative  day  before  it  can  be  voted  upon  or 
before  it  can  be  passed,  and  on  its  third  reading  no  amendment 
can  be  made  to  it,  nor  can  any  debate  be  had. 

It  is  an  exceedingly  common  thing,  and  happens  at  every  session  Important 
of  our  Legislature  that  an  apparently  insignificant  amendment  is 
offered  on  the  third  reading  of  a  bill.  The  bill  passes  with  it. 
The  amendment  may  be  innocent  of  itself.  It  then  goes  into  the 
engrossing  room,  and  what  was  left  undone  to  change  the  nature 
of  the  bill  on  its  third  reading  is  done  in  the  engrossing  room,  and 
it  goes  to  the  Governor,  and  no  one  knows  how  the  amendment 
got  in,  and  it  can  be  traced  to  no  one  in  particular.  All  we  know 
is  that  the  members  have  voted  upon  a  certain  bill,  and  when  it 
reached  the  Governor  it  was  an  entirely  different  bill. 


amendments 
at  the  last 
hour. 


184.   Problems  of  Legislative  Reform  * 

The  difficulties  in  the  way  of  sound  legislation  and  suggestions 
for  improvement  in  legislative  methods  are  thus  summed  up  by 
a  commission  appointed  in  New  York  in  1895  to  investigate  the 
whole  problem  of  intelligent  law  making :  — 

By  far  the  major  part  of  the  bills  which  are  presented  to  the  How 
Legislature  are  drawn  at  the  instigation  of  private  or  local  inter-  presented, 
ests,  and  frequently  without  regard  either  to  their  effect  upon  the 
general  body  of  legislation  of  the  State,  or  upon  adverse  interests, 
or  upon  any  interests  other  than  those  which  prompt  the  draw- 
ing of  the  bills.  They  are  presented  during  the  greater  part  of 
the  legislative  session  practically  without  limitation  as  to  time 
of  introduction,  and  without  notice  of  their  purposes  to  interests 


468  American   Government  and   Politics 

to  be  affected.  They  come  from  the  Legislature  in  such  bulk 
and  numbers  that  their  proper  consideration  is  impossible,  even 
on  the  part  of  the  committees  which  have  them  in  charge,  whose 
duty  nominally  it  is  to  digest,  examine,  study  and  have  hearings 
upon  every  measure  which  is  submitted  to  their  care. 

No  reflection  is  intended  to  be  made  upon  the  committees  or 
their  members  for  the  non-performance  or  partial  performance 
of  a  duty  which  has  become  too  onerous  for  human  possibility. 
When  presented  to  the  Senate  or  Assembly,  and  placed  upon  the 
files  of  members  in  printed  form,  they  are  presented  with  so  little 
method  as  to  procedure,  when  they  are  to  be  considered  on  second 
reading  or  in  committees  of  the  whole,  that  it  is  practically  im- 
possible for  even  the  best  informed  and  most  industrious  legis- 
lator to  understand  what  changes  are  being  made  in  the  existing 
law,  or  to  keep  himself  so  informed  as  to  the  major  part  of  the 
legislation,  during  its  passage  in  the  Senate  or  Assembly,  as  to 
exercise  a  deliberate  judgment  before  he  votes.  It  is  no  ex- 
aggeration to  say  that  it  is  physically  impossible  for  him  to  even 
read  the  contents  of  his  files  during  the  session,  in  addition  to  the 
performance  of  his  other  duties.  The  consequence  is  that  usually 
each  member  takes  an  active  personal  interest  in  the  bills  which 
come  from  his  own  constituency,  and  sometimes  takes  an  interest 
in  the  general  bills  which  come  before  the  legislative  bodies,  and, 
as  to  the  remainder,  constituting  the  vast  majority  of  the  bills, 
is  compelled,  in  the  language  of  Senator  Edmonds,  to  enact,  by 
his  vote,  the  measures  into  laws  "in  the  hope  that  fortune  rather 
than  time,  study  and  reflection  will  take  care  that  the  public  sufifer 
no  detriment." 

This  Commission  invited  the  opinions  of  persons  of  large  legis- 
lative experience,  and  at  several  sessions  have  been  favored  by 
their  attendance  and  their  views.  There  has  been  a  general 
agreement  with  the  views  of  the  Commission  on  the  part  of  those 
who  have  been  thus  invited  and  attended,  that  to  secure  better 
legislation  in  the  future  it  is  necessary  to  methodize  and  improve 
legislation  in  the  following  particulars: 


The  State   Legislature  469 

First.  —  That  all  private  and  local  bill?,  including  bills  which  Private  and 
relate  to  municipalities,  shall  be  filed  either  before  the  beginning 
of  the  legislative  session  or  within  thirty  days  before  their  pre- 
sentation to  the  Legislature,  unless  the  Governor  of  the  State 
takes  upon  himself  the  responsibility  of  making  a  special  recom- 
mendation of  urgency;  and  that  each  bill  shall  be  accompanied 
with  proof  that  a  notice  was  duly  published  or  personally  served, 
or  both,  as  the  circumstances  of  the  case  m.ay  require,  on  every 
interest  v/hich  may  be  affected  by  such  legislation. 

Second.  —  That  the  petition  for  such  legislation  shall  set  forth  The  op- 
its  general  scope,  object  and  utility.  This  petition  may  be  an-  objections, 
swercd  in  writing  by  any  adverse  interest.  Such  petition,  and 
one  or  more  answers  which  partake  of  the  nature  of  plead- 
ings in  a  civil  suit,  shall  be  filed  with  the  bill,  and  these 
petitions  and  counter-petitions,  duly  signed,  shall  accompany 
each  bill  of  this  character  during  the  whole  of  its  legislative 
progression. 

Third.  —  Tlmt  Committees  of  Revision,  both  Senate  and  The  revi- 
Assembly,  should  have  their  powers  enlarged  for  the  considera-  i^^^" 
tion  of  all  measures,  both  pu!)lic  and  private  or  local,  and  that 
each  of  such  committees  shall  be  assisted  in  its  labors  by  a  lavv'yer 
of  at  least  ten  years'  standing,  with  an  adequate  salaiy  to  insure 
proper  talent,  who  shall  have  such  assistants  as  may  be  necessary. 
These  committees  to  act  as  advisory  committees  for  redrafting 
bills,  and  for  recommendations  as  to  their  effect,  with  suggestions 
as  to  their  operation  upon  the  general  body  of  the  law,  and  to 
point  out  constitutional  or  other  defects.  Such  counsel  to  be 
appointed  by  the  Governor,  Lieutenant-Governor  and  Speaker 
of  the  House,  for  a  fixed  term. 

Fourth.  —  That  a  day  calendar  shall  be  printed  one  day  in 
advance  and  distributed  among  the  members. 

Fifth.  —  That  general  public  measures  should  be  referred  be-   Public 
fore  passage  to  the  Commissioners  to  Revise  the  Statutes,  to  report  ■^^^^"'■^^• 
upon  the  effect  of  such  measures  and  their  place  in  the  body  of 
the  statute  law. 


470 


American   Government  and  Politics 


Adminis- 
trative 
measures. 


Sixth.  —  That  committees  of  the  Legislature  should  be  em- 
powered to  take  testimony. 

Seventh.  —  That  every  committee  should  be  required  to  report 
the  private  and  local  bills  which  have  been  submitted  to  it,  with 
the  reasons  for  its  action,  within  a  certain  number  of  days  after 
the  Inll  has  been  committed  to  its  care. 

Eighth.  —  That  some  of  the  Senate  Committees  should  be  en- 
larged, particularly  such  committees  as  have  imposed  upon  them 
the  most  onerous  duties  of  the  legislative  session,  such  as  the 
Committee  on  Cities,  the  Committee  on  Finance,  the  Committee 
on  Judiciary. 

Ninth.  —  That  a  proportionate  share  of  the  printing  expenses 
incident  to  a  legislative  session,  which  amounted,  during  the  last 
session,  to  the  sum  of  $200,000,  should  be  borne  by  the  parties 
interested  in  the  bills,  and  in  whose  interest  and  at  whose  request 
legislation  is  considered,  particularly  monied  corporations,  stock 
corporations  or  private  individuals. 

Tenth.  —  The  general  laws  should  be  completed  as  rapidly  as 
possible,  and  all  public  statutes  should  be  incorporated  into  them 
or  into  one  of  the  Codes. 

Eleventh.  —  That  all  bills  amendatory  of  the  general  laws, 
or  of  the  Code,  should  refer  briefly  in  their  title  to  the  general 
subject  to  which  they  relate. 

Twelfth.  —  That  all  amendments  to  City  Charters  or  to  the 
general  municipal  incorporation  laws  should  briefly  state  in  the 
title  the  subject  of  the  sections  of  the  Statute  which  are  proposed 
to  be  amended. 

Thirteenth.  —  That  with  reference  to  every  bill  aflf acting  any 
department  of  the  state  government,  or  the  general  administration 
of  the  law  subject  to  the  supervision  of  such  department,  notice 
thereof  shall  be  given  to  the  head  of  the  department  having  the 
administration  of  such  subject  under  his  supervision,  and  an 
opportunity  afforded  him  to  be  heard  before  the  bill  is  reported 
or  passed. 


The  State   Legislature  471 


185.    The  Legislative  Committee  of  Inquiry 

Owing  to  the  complexity  of  the  problems  which  the  modern 
legislature  is  compelled  to  meet,  it  has  become  a  common  practice 
to  appoint  special  committees  to  investigate  specific  problems  and 
report  either  suggestions  for  legislation  or  complete  laws  covering 
certain  topics.  This  practice  is  illustrated  by  these  extracts  from 
a  report  of  a  joint  committee  appointed  in  New  York  to  inquire 
into  the  subject  of  highway  improvement :  — 

To  the  Senate  and  Assembly: 

The  Joint  Committee  of  the  Senate  and  Assembly,  appointed  Creation 
pursuant  to  a  concurrent  resolution  duly  adopted  May  29,  1907,   zation'^of  the 
submits  the  following  report:  committee. 

The  resolution  directed  the  Committee  — 

to  inquire  into  the  subject  of  the  methods  of  construction  of  improved 
highways  and  the  maintenance  and  repairs  of  all  highways  in  the  State, 
together  with  the  general  subject  of  a  proper  development  of  the  whole 
system  of  highway  improvement  in  the  State,  and  whose  duty  it  shall 
also  be  to  revise  and  amend  the  highways  laws,  and  to  report  to  the 
next  Legislature  on  or  before  February  15,  1908,  the  result  of  said  in- 
vestigation, and  revised  Highway  Law,  together  with  any  other  bills 
necessary  to  carry  into  effect  the  recommendations  of  the  general 
committee. 

The  Committee  organized  July  24,  1907,  by  electing  Jotham 
P.  AUds  as  chairman,  Charles  R.  Hotaling  as  sergeant-at-arms, 
Mrs.  J.  L.  Murray  a  stenographer,  and  authorized  the  employ- 
ment of  Frank  D.  Lyon  and  Frank  B.  Gilbert  to  assist  in  the 
revision  and  codification  of  the  Highway  Law  and  also  voted  to 
dispense  with  counsel  other  than  the  employment  of  the  assistants 
upon  the  revision  and  codification. 

The  Committee  began  its  public  hearings  at  the  council  chamber  Local 

^         '  r  T^    rr   ^  /-^       ^  iii'i  authorities 

m  the  city  of  Buffalo  upon  October  14,  1907,  and  closed  its  hear-  ^t  the 
ings  in  the  city  of  New  York  on  December  30th,  having  held   hearings, 
hearings    at    Buffalo,    Rochester,    Syracuse,    Utica,    Watertown, 
Albany,  Newburgh,  and  New  York,  and  having  given  to  the  clerk 
and  chairman  of  the  board  of  supervisors  of  each  county  in  the 


472 


American   Government  and  Politics 


The  present 
law  on 
highways 
examined. 


The  laws  of 
other  states 
investigated. 


State  due  notice  of  the  time  of  the  several  hearings  and  having 
offered  an  opportunity  to  be  heard  to  the  public  officials  of  each 
county  in  the  State,  other  than  those  whose  whole  territory  was 
within  the  limits  of  a  city.  The  committee  was  attended  upon  by 
the  county  representatives,  including  the  chairman  of  the  board, 
and  county  engineer,  where  the  same  existed,  and  the  chairman 
of  the  committee  on  good  roads.  In  many  instances  the  full  board 
of  supervisors  of  the  respective  counties  were  present  and  all  of  the 
counties  affected  by  the  subject  were  heard  in  person  except  that 
in  a  few  instances  they  communicated  with  the  Committee  in 
writing  and  in  two  instances  only  were  the  counties  not  repre- 
sented owing  to  the  fact  that  the  address  of  the  clerk  of  the  board 
of  supervisors  was  defective  and  the  notice  of  the  hearing  in  that 
locality  was  later  returned  to  the  chairman  of  the  Committee  by 
the  post  office  department  as  undelivered. 

Before  commencing  its  public  hearings,  the  Committee  consulted 
with  the  State  Engineer  and  Surveyor  as  to  his  views  of  the  pres- 
ent condition  of  the  Highway  Law  in  this  State  so  far  as  the  same 
related  to  the  general  repairs  of  all  the  highways  of  the  State 
and  also  as  to  the  working  of  the  present  statutes  for  the  improve- 
ment of  main  highways  and  the  maintaining  of  the  same  and  he 
not  only  expressed  to  us  his  views  as  to  the  general  plan  and  scope 
of  hearings,  but  at  several  hearings  we  were  attended  by  a  repre- 
sentative of  his  office  and  thereby  received  many  valuable  sug- 
gestions. 

The  joint  resolution  requires  your  Committee  first,  to  investigate 
and  report  upon  the  methods  of  a  proper  development  of  the  whole 
system  of  highway  improvement ;  second,  to  provide  for  construc- 
tion and  maintenance,  and  third,  to  completely  revise  and  codify 
the  present  Highway  Law.  We  therefore  felt  it  incumbent  upon 
us  to  secure  the  fullest  expression  of  the  views  of  the  local  officers 
of  every  section  of  the  State ;  to  examine  the  statutes  so  as  to  de- 
termine the  methjds  adopted  in  European  countries  and  in  the 
sister  States  of  this  country  and,  finally,  we  determined  to  obtain 
the  views  of  the  State  Grange  and  secure  the  testimony  of  the 


The  State   Legislature  473 

chairman  of  the  highway  commissions  of  Massachusetts,  Connecti- 
cut and  New  Jersey  as  to  the  practical  workings  of  the  respective 
statutes  in  those  States  because  a  large  amount  of  work  has  been 
done  in  each  of  these  commonwealths  and  these  three  have  each  a 
different  system.  That  of  Massachusetts  being  the  centralized 
system,  Connecticut  the  town  system,  and  New  Jersey  may  be 
characterized  somewhat  more  properly  as  the  co-operative  system. 

It  is  not  the  intention,  within  the  limits  of  this  report,  to  dis-  A  digest  of 
cuss  the  great  variety  of  views  which  have  been  presented  to  your  ^^^  ^  ^^^^ 
Committee.     Two  volumes  of  testimony  have  been  taken  and  a  plete  law 
careful  digest  of  other  State  and  foreign  laws  has  been  made  and 
carefully  examined  by  the  Committee.     A  digest  has  been  made 
of  the  testimony  taken  to  enable  the  Committee  to  form  an  intelli- 
gent impression  of  what  may  fairly  be  said  to  be  the  consensus  of 
opinion  with  reference  to  the  larger  matters  of  policy  which  had 
to  be  determined  by  the  Committee  before  it  could  make  a  re- 
codification of  the  Highway  Law.     Your  Committee  believes  that 
the  plan  and  details  of  the  revised  code  herewith  submitted  fairly 
represent  the  average  judgment  of  the  local  officers  combined  with 
the  experience  of  adjoining  States. 


186.    The  Legislative  Reference  Bureau 

These  paragraphs  from  an  interesting  article  in  the  Review  of 
Reviews  by  Professor  J.  R.  Commons  describe  the  establishment 
of  an  important  institution  in  Wisconsin  to  assist  legislators  in  secur- 
ing information  on  problems  coming  before  them  for  solution. 

On  his  appointment  in  1901  Dr.  McCarthy,  the  legislative  ^^^  coUec- 
librarian,  did  a  very  sensible  thing.  He  started  a  clipping-bureau,  literature. 
He  collected  all  of  the  pamphlets,  bulletins,  reports  of  commissions, 
magazine  articles,  and  the  like  that  he  could  get  free.  He  ac- 
cumulated as  many  duplicates  as  possible  for  free  distribution. 
He  classified  them  and  arranged  them  under  proper  headings, 
paying  special  attention  to  the  subjects  that  he  knew  would  come 
up  at  the  next  legislative  session.     He  searched  the  libraries  of 


474 


American   Government  and   Politics 


Assistance 
offered  to 
legislators. 


Work  for 
legislative 
committees. 


the  several  State  departments  and  brought  over  vi^hatever  he 
thought  would  be  an  aid  to  the  legislature.  By  the  time  the 
session  met  in  1903  he  had,  not  what  would  be  called  a  library 
but  an  up-to-date,  live  set  of  aids  to  law-makers. 

But  this  was  preliminary.  As  soon  as  the  elections  had  been 
held  he  sent  to  all  the  members  of  the  incoming  legislature  a  cir- 
cular, telling  them  something  of  what  he  had  on  hand,  and  ofifering 
to  assist  them  by  furnishing  information,  copies  of  laws  enacted 
or  bills  introduced  in  other  States,  etc.,  on  any  measure  that  they 
proposed  to  bring  before  the  legislature.  Over  one  hundred 
requests  came  in,  and  he  forwarded  by  mail  his  clippings,  pam- 
phlets, and  bills.  When  the  legislature  assembled  he  moved  his 
collection  to  a  room  on  the  same  floor.  He  circulated  among 
the  members,  brought  them  to  his  library,  and  showed  them  what 
he  had.  He  learned  what  they  wanted  and,  if  he  did  not  have  it 
on  hand,  he  immediately  wrote  or  wired  to  all  parts  of  the  country 
to  get  it. 

When  the  committees  were  appointed  and  began  their  work 
he  helped  them  in  the  same  way.  He  sent  hundreds  of  copies  of 
their  bills  to  experts,  commissions,  lawyers,  and  informed  citizens 
in  Wisconsin  and  other  States,  asking  for  criticisms,  improvements, 
and  accounts  of  whatever  experience  they  might  have  had  on  the 
points  involved.  If  a  lobbyist  made  a  statement  before  a  com- 
mittee, he  would  have  replies  .  .  .  within  a  day  or  two  .  .  .  from 
the  parties  who  knew  the  facts.  The  chairman  of  the  Committee 
on  Claims  has  given  several  instances  where  these  replies  saved 
the  State  hundreds  and  even  thousands  of  dollars.  Other  com- 
mittees were  aided  in  a  similar  way.  The  committees  on  railway 
legislation,  primary  elections,  and  civil-service  reform  at  the  sessions 
of  1903  and  1905  had  before  them  .  .  .  the  bills  introduced  in 
other  States,  the  hearings  on  those  bills,  arguments  of  counsel, 
the  best  pamphlets  and  magazine  articles,  besides  pertinent  letters 
from  the  best-informed  men  of  the  country. 


The  State   Legislature  47^ 


187.    The  Evils  of  Over-legislation 

In  an  important  address  before  the  American  Bar  Association, 
Judge  Alton  B.  Parker  discussed  the  problem  of  hasty  and  prolix 
legislation  in  the  American  states. 

Few  questions  have  been  more  discussed  during  recent  years  The  zeal  for 
than  the  increasing  tendency  of  legislative  bodies  to  propose  and 
to  enact  new  laws.  Scarcely  any  agitation  of  a  public  or  a  moral 
question  is  so  unimportant  that  it  does  not  jjroduce,  in  nearly 
half  a  hundred  state  capitols,  a  series  of  bills  supposed  to  repre- 
sent it  in  all  its  varied  and  shifting  phases.  It  has  become  far 
more  common  to  look  for  a  new  law  for  the  punishment  of  an  old 
offense  or  for  defining  anew  the  relations  of  individuals  to  each 
other  than  it  is  to  invoke  those  powers  or  remedies  by  which,  over 
many  centuries,  while  law  has  been  gradually  taking  fixed  form, 
men  have  been  able  to  punish  crimes  against  society  or  to  settle 
their  own  differences. 

And  yet  every  man  who  has  had  occasion  to  study  the  question,    ^^^  "^^ 

I  •  r  principles 

even  m  its  narrower  bearings,  has  been  forced  to  conclude  that  but  adopted, 
a  small  percentage  of  proposed  new  enactments  involves  a  new 
])rinciple,  or  even  a  new  poUcy.  It  rarely  haj)pens  that  an  offense 
is  committed  for  which  no  proper  punishment  has  been  provided, 
and  it  is  a  long  time  since  any  real  question  has  arisen  between 
men  to  demand  legal  settlement  impossible  under  existing  law.  .  .  . 

Legislation  of  this  order  is  promoted  in  many  ways.     One  of  The  clamor 

1  cr   •  •         •  11  rr^i  •  1        foj"  victims. 

the  most  eriicient  agencies  is  popular  clamor.  Ihis  may  be 
produced  by  the  demagogue,  whose-  interest  it  is  to  make  the  part 
appear  to  be  the  whole.  It  may  be  started  by  the  robbery  of 
a  savings  bank,  or  by  adulteration  on  the  part  of  some  manu- 
facturer, or  dishonesty  by  the  head  of  a  business  corporation,  or 
in  any  one  of  a  hundred  different  ways.  Such  an  agitation  will 
naturally  be  encouraged  by  sensational  newspapers,  and  by  the 
oftentimes  scarcely  less  sensational  pulpit.  As  it  goes  on  it  gathers 
force  until  it  passes  into  one  or  the  other  of  the  many  forms  of 
that  hysteria  which  demands  nothing  so  much  as  a  victim.     In 


476 


American  Government  and   Politics 


The  effect 
of  the 
failure  to 
enforce 
old  laws. 


The  eflfcct 
of  executive 
influence. 


The 

crusades  of 
special 
interests. 


such  a  period  the  recurring  session  of  a  legislature  comes  in  its 
due  course,  or  an  ambitious  or  sympathetic  governor  calls  an 
extra  session.  Thus  dozens  of  useless  laws  are  placed  upon  the 
statute  books,  every  one  of  which  chokes  the  channels  of  justice. 

Another  fruitful  source  of  legislation  is  the  neglect  or  failure  to 
enforce  existing  laws.  A  lax  public  sentiment,  plus  an  incom- 
petent executive,  renders  of  no  effect  a  wholesome  law  until  the 
breaches  of  it  become  so  numerous  and  offensive  that  an  aroused 
and  indignant  public  sentiment  demands  relief.  The  result  is 
often  a  demand  for  further  legislation,  because  it  is  erroneously 
assumed  that  the  wrong  suffered  by  the  public  could  not  have 
happened  had  the  laws  been  adequate  for  its  protection.  And  a 
crop  of  new  and  unnecessary  statutes  is  the  outcome  —  unneces- 
sary because  all  that  is  needed  is  rigid  enforcement  of  existing  law. 

In  many  cases  the  misdirected  or  ignorant  zeal  of  an  executive 
officer  is  responsible  for  many  new  and  useless  laws.  Such  an 
official  —  generally  with  the  elements  in  him  of  the  agitator,  and 
often  of  the  demagogue  —  has  been  carried  into  office,  after  an 
hysterical  canvass,  under  the  promise  to  prosecute  certain  kinds 
of  accused  persons.  Once  elected,  he  takes  up  his  work  in  the 
same  spirit  that  had  characterized  his  electoral  campaign.  He 
indicts  with  great  facility.  He  tilts  against  classes  or  individuals, 
only  to  find  that  juries  do  not  convict,  or  that,  if  they  do,  courts 
will  not  sustain.  Then  comes  a  new  harvest  of  laws  in  order  to 
justify  or  supplement  the  zeal  of  men  who  may  be  honest,  but 
who  are  wanting  either  in  judgment  or  knowledge.  In  addition 
there  is  nothing  which  can  more  surely  produce  contempt  of  the 
law  than  the  spasmodic  activity  to  which  some  prosecutors  are 
addicted.  .  .  . 

Another  favorite  form  of  legislation  is  that  for  the  benefit  or 
at  the  behoof  of  a  party.  The  continual  tampering  uith  election 
laws  and  regulations;  the  creation  of  useless  offices,  political  or 
judicial;  crusades  against  or  favors  conferred  upon  corpora- 
tions or  interests;  the  re-organization  of  city  governments;  the 
legislation  of  one  class  of  officials  out  of  office,  in  order  to  put 


The  State   Legislature  477 

another  in;  the  institution  of  a  state  constabulary  for  the  pur- 
pose of  controlling  the  police  of  great  cities  for  party  or  personal 
purposes;  the  tilting  against  opponents,  a  process  common  to 
many  legislative  bodies  —  all  these  are  productive  of  such  infinite 
and  far-reaching  harm  as  to  emphasize  the  doctrine  that  no 
partisan  legislation,  either  proposed  before  the  bodies  themselves 
or  pushed  in  their  committees,  or  enacted  into  law,  can  be  fair, 
just  or  enduring. 

The  forms  of  legislative  waste  here  enumerated,  and  the  causes  Committees 
which  promote  them,  serve  to  show  why  it  is  that  an  almost  com-  rolling, 
plete  change  has  come  over  the  character  of  our  legislative  bodies. 
Their  presence  gives  the  speaker  almost  arbitrary  power,  makes 
committees  into  a  new  form  of  tyrants,  develops  management  and 
intrigue  into  fine  arts,  produces  bosses  as  a  natural  result,  and, 
while  keeping  the  larger  men  out  of  legislative  halls,  puts  small 
ones  into  their  places.  Log-rolling  becomes  a  necessity,  and  mis- 
chievous or  useless  bills  pass  easily  and  almost  by  sufferance. 
The  existence  of  these  elements  also  promotes  conflict  between 
urban  and  rural  interests  in  the  hope  that  one  or  the  other  may 
escape  a  fair  share  of  that  taxation  which  always  grows  as  a  result 
of  such  a  dangerous  rivalry. 

It  is  not  alone  in  the  domain  of  law-making  and  the  legislator  The  burden 
that  these  abuses  are  potent.  They  add  to  the  labor  of  the  judi-  judiciary, 
ciary.  Upon  it  is  thrown  for  adjudication,  year  after  year,  a  body 
of  work  absolutely  unnecessary,  and  at  great  expense  to  the  public 
and  often  to  private  individuals.  The  constitutionality  of  much 
of  this  new  legislation  is  continually  questioned.  So  true  is  it 
that  a  substantial  percentage  of  the  questions  brought  before 
Appellate  Courts  are  related  to  doubts  of  the  validity  of  the  laws 
under  which  actions  are  brought.  Indeed,  in  the  State  of  New 
York,  in  a  period  covering  about  twenty  years,  the  constitutionality 
of  over  five  hundred  statutes  was  challenged  in  the  Court  of 
Appeals.  The  dovetailing  of  new  legislation  into  existing  law, 
and  the  cost  of  construing  the  possible  meaning  of  a  legislature, 
also  enter  into  a  considerable  part  of  the  annual  output  of  twenty 


478 


American   Government  and   Politics 


Legislation 
in  England 
and  the 
United 
States 
compared. 


thousand  decisions  rendered  by  Appellate  Courts.  Many  of 
these  mushroom  enactments  are  permitted  to  slumber  by  com- 
mon consent.  But  this  is  dangerous,  because,  in  such  cases, 
offensive  laws  remain  upon  the  statute  books,  and  may  later  be 
evoked  for  mischievous  purposes.  .  .  . 

With  more  than  twenty-five  thousand  pages  of  new  laws  added 
to  the  statute  books  each  year,  it  is  apparent,  if  the  suggestions 
so  far  made  be  well  founded,  that  rehef  is  absolutely  necessary. 
During  the  years  between  1899  and  1905,  England's  Parliament, 
legislating  for  the  needs  of  forty-two  millions  of  home  population 
and  millions  of  dependents,  passed  an  average  of  only  forty-six 
general  and  two  hundred  and  forty-six  special  laws  —  the  num- 
ber of  the  latter  being  swelled  by  the  necessity  for  granting  fran- 
chises for  railways  and  charter  amendments  for  cities.  One  of 
the  potent  elements  in  the  working  out  of  this  to  us  most  astonish- 
ing result  has  been  the  presence  of  a  salaried  draftsman  —  a 
lawyer  of  high  repute,  well  paid  for  his  services  —  whose  duty  it 
is,  not  only  to  study  the  phraseology  of  proposed  laws,  but  also 
to  make  a  thorough  examination  of  existing  legislation,  for  the 
benefit  of  Parliament  and  its  committees.  The  publicity  of  all 
committee  hearings  and  the  report  of  their  proceedings  in  the 
press  have  also  contributed  much  to  promote  this  result.  While 
our  complicated  system  of  local  government  vvill  account  for  a 
considerable  part  of  our  vast  volume  of  legislation,  the  greater 
part  of  it  is  due  to  causes  such  as  I  have  suggested. 


188.   Legislatures  and  Railways 

The  following  letter  from  Mr.  J.  T.  Brooks,  of  the  Pennsylvania 
Railroad  Company,  throws  an  interesting  light  on  the  relation  of 
public  officials  to  railway  corporations :  — 


Office  of  the  Second  Vice-President, 

Pittsburg,  July  20,  1894. 
Hon.  Joseph  H.  Choate,  President  Constitutional  Convention, 

Albany,  N.Y.: 


The  State   Legislature  479 

...  I  have  seen  the  evils  of  the  pass  system  grow  from  very  The  growth 
small  beginnings  to  what  I  regard  as  very  great  and  deplorable  demand  for 
proportions.  I  have  tried  to  persuade  officials  of  other  railway  passes. 
companies  to  follow  my  example,  and  I  have  endeavored  to  per- 
suade the  Legislature  of  Ohio,  in  which  State  I  have  always  lived, 
on  different  occasions,  to  pass  prohibitory  laws  on  this  subject, 
but  in  each  instance  and  always,  without  avail.  There  was  a 
time  when  public  officials  were  content  to  receive  occasionally 
a  trip  pass  for  themselves.  They  "have  learned  to  ask  for  passes 
for  themselves,  for  members  of  their  families,  and  for  political 
adherents  and  others.  They  not  only  ask  for  passes  good  over 
lines  which  are  controlled  by  the  officers  to  whom  they  apply, 
but  they  ask  for  passes  over  connecting  lines  to  distant  and  remote 
parts  of  the  country,  good  at  all  seasons  of  the  year.  They  not 
only  ask  for  trip  passes  for  themselves  and  their  friends,  but  they 
ask  for  annual  passes  for  themselves  and  their  friends;  and  no 
matter  how  many  passes  may  be  granted  to  a  single  individual, 
if  a  single  request  be  refused,  the  enmity  of  that  official  is  aroused, 
and  his  vengeance  exercised  if  he  has  an  opportunity  so  to  do. 

I  have  known  a  member  of  the  Supreme  Court  of  the  United 
States  to  apply  for  free  transportation  the  money  value  of  which, 
in  a  single  instance,  was  between  two  and  three  hundred  dollars. 
Governors  of  States,  United  States  Senators,  Members  of  the  House 
of  Representatives,  members  of  every  department  of  State  Govern- 
ment, from  the  Governor  to  the  janitor  ask  and  expect  to  receive 
these  favors. 

In  consequence  of  the  position  I  have  taken,  and  persisted  in   Denial  of 
on  this  subject    for   several  years,  I  have  seen  county  auditors  jg^^g  f^ 
and  State  boards  of  equalization  who  hold  the  power  of  taxation   retaliation, 
over  us,  exercise  it  tyrannically  and  unjustly  to  the  detriment 
of   the   companies  I  represent.     I  have  known  of  the  chiefs  of 
the  executive  departments  in  the  State   government    combining 
in  the  Capitol  during  sessions  of  the  Legislature  and  at  other 
times,  to  wreak  their  vengeance  upon  our  company  because  they 
were  not  served  with  annual  passes  by  our  company,  as  by  other 


480 


American   Government  and  Politics 


Favors  for 
tax  officials. 


Giving 
passes  is 
giving 
money. 


companies.  I  have  known  of  the  passage  of  resolutions  in  state 
legislatures,  made  against  the  companies  I  represent,  accom- 
panied by  suppressed  howls  of  delight,  for  the  reason  that  the 
members  had  not  been  served  with  passes  according  to  their  wishes 
and  requests.  I  have  received  offers  from  men  in  public  station 
to  serve  our  company  in  their  official  capacity,  if  I  would  give 
them  passes  and  I  have  received  threats  from  the  chiefs  of  ex- 
ecutive departments  of  State  because  I  declined  to  give  them 
annual  passes  as  other  railroads  have  done.  I  have  seen  other 
railroad  companies  issue  these  passes  without  stint  to  all  persons 
in  all  grades  and  stages  of  public  life,  and  receive  a  direct  pecuniary 
benefit  therefrom,  and  have  seen  those  benefits  withheld  from 
our  company  because  I  did  not  do  as  other  men  did  in  the  grant- 
ing of  passes. 

An  officer  of  a  rival  railroad  company  recently  told  me  that 
he  had  taken  the  entire  Board  of  Tax  Commissioners  of  a  certain 
State,  with  their  families  and  certain  friends,  from  a  large  inland 
city  to  Fortress  Monroe  and  Washington  and  back  home,  furnishing 
the  comforts  of  a  Pullman  car,  free  transportation,  and  all  ex- 
penses of  the  journey,  and  receiving,  as  he  said,  as  a  direct  reward 
thereof,  a  reduction  in  the  appraisement  of  the  property  he  rep- 
resented, equivalent  to  many  thousands  of  dollars  a  year.  .  .  . 

A  pass  over  a  railroad  is  the  equivalent  of  money  and  few  men 
in  civilized  society  are  above  the  temptation  of  receiving  it.  In 
very  many  instances  railroad  companies  receive  a  direct  and 
pecuniary  equivalent  of  the  pass  which  they  give.  In  other 
cases  the  public  officials  who  receive  passes  quietly  enjoy  the 
saving  of  money,  which  the  passes  afford  them,  and  discharge 
their  duties  impartially  as  between  the  railroad  company  and  the 
public  precisely  as  if  the  passes  had  not  been  given.  I  regard 
the  tendency  of  the  system  pernicious  in  the  extreme.  The  dif- 
ference between  giving  the  thing  of  money  value  and  the  money 
itself,  to  a  public  official,  is  slight.  If  railroad  officials  and  public 
officials  become  accustomed  to  the  giving  and  receiving  of  things 
of  value,  the  official  character  of  the  recipient  being  the  only 


The  State   Legislature  481 

consideration  thereof,  the  conscience  of  both  railroad  and  other 
officials  becomes  demoralised  and  corrupted,  and  men  on  both 
sides  soon  learn  that  money  might  as  well  be  given  as  passes  for 
the  purpose  of  controUing  the  action  of  pubhc  servants. 

I  have  always  thought  that  the  practice  of  railroad  companies  in  A  source  of 
giving  these  passes  to  servants  of  the  public  was,  and  is,  one  im-  corporations, 
portant  factor  of  the  distrust  and  denunciation  in  which  the  com- 
mon people  indulge  against  railway  corporations.  It  certainly 
needs  no  argument  to  prove  that  free  transportation  is  a  thing  of 
money  value  and  that  these  passes,  given  to  men  in  public  life, 
who,  in  the  exercise  of  their  pubHc  functions,  are  required  to  pass 
upon  the  rights  of  railroad  companies,  as  between  railroad  com- 
panies and  the  public,  are  given  for  a  consideration,  and,  no  matter 
what  the  forms  or  terms  of  courtesy  on  which  those  passes  are 
given,  the  selfish  and  improper  motive  is  always  apparent.  The 
present  is  a  good  time  for  law-makers  and  officials  of  railroad 
companies  to  take  heed  of  the  signs  of  the  times,  and  regulate 
their  conduct  according  to  the  ancient  principles  of  justice  and 
patriotism. 

I  hope  the  Constitutional  Convention  will  enact  a  thorough  pro- 
vision on  this  subject.  It  is  imperative  that  the  Convention  shall 
find  some  way,  if  possible,  by  which  Constitutional  provision  may 
enforce  itself,  for  I  have  no  hope  that  any  Legislature  may  be  found 
to  be  unselfish  and  patriotic  enough  to  deny  themselves  the  privi- 
leges of  free  transportation  for  themselves  and  friends.  .  .  . 

Within  the  last  few  years  blackmaihng  legislators  have  been  in-   Recent 

.  .  .    ,        .  .  examples  of 

troducmg  bills  for  the  taxation  of  sleeping-car  companies,  express  blackmail, 
companies  and  telegraph  companies.  The  result  is  that  passes 
are  being  issued  by  these  various  organisations,  in  greater  or  less 
number,  and  telegraph  passes  can  now  be  found  in  the  pockets  of 
nearly  all  members  of  the  Legislature  in  all  the  important  States. 
I  hope  the  Constitutional  Convention  of  the  great  State  of  New 
York  will  set  a  noble  example  on  this  subject.  .  .  . 

Yours  respectfully, 

J.  T.  Brooks. 


482  American   Government  and   Politics 

In  the  debate  on  the  prohibition  of  railway  passes  in  the  New 
York  constitutional  convention,  Mr.  Powell  ironically  suggested 
that  the  principle  should  be  applied  at  once :  — 

Mr.  Powell.  Mr.  President,  it  occurred  to  me  when  we  occupied 
the  greater  part  of  a  day  in  discussing  this  proposed  amendment 
that  this  convention  was  bringing  its  dignity  down  to  about  the 
lowest  point  that  was  conceivable.  When  we  get  so  low  that  we 
propose  to  introduce  the  consideration  of  railroad  passes  into  the 
Constitution  of  the  State,  I  think  it  is  about  time  for  us  to  adjourn 
and  go  to  our  respective  homes  and  see  if  we  cannot  find  something 
more  important  to  engage  our  mental  activities.  Gentlemen,  you 
will  remember  on  that  afternoon  what  a  magnificent  outburst  of 
civic  virtue  we  had.  I  confess,  Sir,  that  with  a  railroad  pass  in  my 
pocket,  like  the  publican  who  went  up  into  the  temple  of  old,  I 
Stood  afar  off  in  the  presence  of  these  Pharisee  protestations  and 
bowed  my  head  and  smote  my  breast  when  I  realised  what  a  miser- 
able sinner  I  was,  and  in  order  to  test  the  sincerity  of  this  con- 
vention, I  drew  a  resolution  that  afternoon  for  the  purpose  of  pre- 
senting it  at  the  evening  session.  It  occurred  to  me  that  if  railroad 
passes  were  such  dangerous  things  for  judges  and  legislators  and 
state  officials  to  have  that  they  must  be  equally  dangerous  to  the 
members  of  this  convention  and,  laboring  under  the  suspicion  that 
there  might  possibly  be  in  this  convention  other  sinners  like  my- 
self, I  offered  at  the  evening  session  a  resolution  providing  that  any 
member  of  this  convention  who  should  thereafter  ride  upon  a  rail- 
way pass  should  forfeit  his  per  diem  during  the  rest  of  the  session 
of  this  body.  But,  sir,  to  my  amazement,  this  convention  which 
only  a  few  hours  before  had  expressed  its  detestation  and  fear  of 
railway  passes,  instead  of  honestly  taking  its  own  medicine  and 
purging  itself  of  this  dangerous  article,  voted  unanimously  to  lay 
my  resolution  on  the  table  and  it  has  lain  there  ever  since. 

i8g.    The  Organization  of  a  Lobby 

Mr.  Richard  A.  McCurdy,  in  his  testimony  during  the  In- 
surance Investigation  in  New  York  in  1905,  gave  this  description 


The  State   Legislature  483 

of  one  of  the  methods  employed  by  insurance  companies  to  influ- 
ence legislative  action  in  a  Western  state :  — 

Now  the  suggestion  of  the  name  of  Mr.  Lewis  recalls  to  my  mind  Educating  a 
most  vividly  an  incident  that  he  told  me  of  almost  a  winter's 
season  being  occupied  some  years  ago  at  or  near  the  capital  of  a 
remote  state,  I  have  forgotten  which  it  was,  possibly  it  was  Michi- 
gan or  Wisconsin,  or  Iowa,  I  think  one  of  those  three  States.  He 
said  that  he  had  been  occupied  nearly  all  winter  in  attempting  to 
educate,  not  to  corrupt,  but  to  educate  the  legislative  mind  in  re- 
gard to  a  bill  before  it.  He  told  me  he  went  first  to  the  capital  of 
the  State,  and  got  the  red  book,  or  blue  book,  or  whatever  it  may 
have  been.  He  found  out  the  localities  from  which  each  member 
of  the  legislature  and  the  senate  came.  He  found  out  all  the  men, 
their  putative  political  god-parents,  if  I  may  so  call  them;  their 
relations  and  influential  men,  all  the  men  who  were  influential 
with  them  in  their  neighborhood. 

He  made  journey  after  journey  up  and  down  from  the  capital  to    Pressures 

1  •  11  111  1  •  1  •         from  prom- 

this  town  and  that  town  and  the  other  town,  makmg  the  acquam-   jnent  con- 

tance  of  these  men,  and  getting  them  to  go  there  during  the  session  stituents. 

of  the  legislature.     Paid  many  of  them,  not  all  lawyers.     They 

were  men  who  would  not  leave  their  business,  the  presidencies,  or 

cashierships  of  banks,  and  make  a  trip  up  to  the  capital  of  the 

State   unless  not  only   their  expenses  were  paid  but  something 

else. 

He  went  on  further,  and  he  said  he  went  to  Washington  during   Washington 
that  session  of  the  Legislature.     It  took  him  some  weeks  to  make  g^j  j„ 
the  acquaintance  of  the  Senators  and  members  of  Congress  in  the  motion. 
House  of  Representatives  from  that  state,  so  that  he  was  able  to  get 
upon  a  friendly  footing  with  them,  and  that  they  would  listen  to 
him  and  hear  his  statement  of  the  damage  that  would  be  wrought 
to  the  company  and  to  all  life  insurance  provided  this  measure 
which  was  then  sent  was  passed,  and  he  got  from  them  letters  of 
introduction  back  again,  and  that  was  the  substance  of  it,  that  all 
that  winter  he  practically  had  been  engaged  on  that  business  and 
without  one  dollar  being  expended  excepting  for  the  fees  paid  to 


484 


American  Government  and   Politics 


Payment 
for  services. 


No  im- 
proper use 
of  money. 


"Strike' 
bills. 


lawyers,  the  expenses  paid  to  laymen,  the  compensation  in  many 
cases  paid  to  laymen. 

Q.  For  what?  A.  For  the  services  that  they  had  rendered 
sitting  down  and  listening  to  Mr.  Lewis  explain  the  reasons  why 
he  wanted  their  help  and  assistance  and  in  taking  trips  to  the 
Capitol,  travelling  expenses  and  compensation  for  that  class  of 
service.  And  he  told  me  the  circumstance  without  the  intimation 
or  the  belief  on  my  part  he  had  paid  one  dollar  for  anything  except- 
ing legitimate  purposes,  and  he  charged,  —  I  am  willing  to  testify 
that  in  my  judgment  it  was  a  very  inadequate  sum. 

Q.  For  his  services  ?  A.  For  his  own  services,  he  charged  $5000 
beyond  his  expenses,  which  were  a  good  many  thousand  dollars 
more,  how  much  more  I  don't  know.  I  give  that  merely  as  an  il- 
lustration and  to  repel  the  assumption  that  necessarily  money  paid 
through  lawyers  whose  names  are  not  given  must  be  for  improper 
purposes.  It  would  not  be  possible  or  it  would  not  be  proper  to 
publish  the  names  of  the  people  that  he  had  employed  to  help  him 
and  who  did  help  him  in  such  a  case  as  that. 

190.   Legislation  against  Corporations 

During  the  Insurance  Investigation  mentioned  above,  Mr.  W. 
F.  Thummel  classified  legislation  against  corporations  as  follows :  — 

I  would  say  generally  this,  that  there  are  several  classes  of  legis- 
lation that  we  meet  constantly,  in  almost  every  legislature.  The 
first  and  most  numerous  one  by  a  great  deal  being  what  is  some- 
times called  strike  bills.  So  far  as  I  have  observed,  those  bills  are 
prepared  by  outsiders.  Very  seldom,  I  would  say,  by  a  member  of 
the  Legislature,  and  they  are  presented  usually  to  some  new  mem- 
ber of  the  Legislature  and  with  a  —  I  am  drawing  on  my  own  idea 
for  this  part  of  it  —  with  probably  the  suggestion  that  it  would 
redound  to  his  reputation,  and  it  is  introduced.  Then,  of  course, 
the  natural  result  would  be  that  the  people  who  were  responsible 
for  its  introduction  would  seek  employment  and  try  to  kill  it. 
There  are  a  good  many  of  that  class  of  bills  at  one  time  and 
another. 


The  State  Legislature  485 

Then  there  is  another  class,  which  is  very  much  more  danger-  ^iUs  in- 
cus to  the  companies,  that  require  a  great  deal  more  effort  to  pre-  other  corpo- 
vent  their  becoming  laws,  and  that  is  the  class  of  bills,  that  are  in-  rations. 
spired  by  other  corporations  for  the  purpose  of  relieving  themselves 
in  some  manner  from  some  obnoxious  provision  of  the  law.  Usu- 
ally it  would  take  this  form,  that  there  was  some  regulation  re- 
quired by  a  corporation  that  had  a  small  revenue  to  it,  and  for  the 
sake  of  illustration  we  will  say  that  the  entire  revenue  to  be  derived 
from  that  particular  part  might  be  $5,000  in  the  State,  and  the 
corporations  that  would  be  affected  by  that  would  introduce,  or 
have  introduced,  a  bill  changing  the  revenue  act.  And  it  would  be 
very  Hkcly  to  pick  upon  life  insurance  premiums  as  the  vehicle  to 
convey  more  taxes  into  the  treasury  of  the  State.  And  somewhere 
in  that  bill  there  would  be  a  provision  that  would  repeal  the  par- 
ticular provision.  Along  in  that  line  I  know  of  at  least  two  in- 
stances where  the  fire  insurance  companies  have  sought  to  be  re- 
lieved of  what  to  them  were  very  onerous  provisions  through  the 
medium  of  a  general  insurance  bill  that  would  have  a  repealing 
clause  in  that  it  would  repeal  those  provisions  to  which  they 
objected. 

Another  class  of  bills  that  are  very  vexatious  are  bills  that  are  Bills  of  de- 
presented  by  attorneys  who  have  been  unsuccessful  in  litigation,  ^f"  '^ 
There  are  not  very  many  of  these,  but  there  are  some,  and  they 
have  been  unsuccessful  because  of  certain  provisions  in  policies. 
I  have  known  this  to  happen  in  both  fire  insurance  and  life,  and 
they  would  introduce  an  act  which  would  make  that  particular 
provision  of  a  policy  null  and  void  in  the  future. 

Then  there  is  the  class  of  bills  that  I  call  honest  bills,  and  that  Honest  bills, 
is  sub-divided  into  two.  The  first  class  might  be  a  very  mischiev- 
ous bill  but  the  framer  of  it  —  and  he  is  usually  a  member  of  the 
Legislature  as  far  as  that  is  concerned  —  would  be  honest  in  his 
conviction  and  really  would  be  seeking  to  do  good  to  the  general 
subject,  and  then  there  is  the  bill  that  is  prepared  by  the  man  who 
knows  what  he  is  talking  about  and  that  is  actually  good  for  the 
business,  that  will  meet  a  defect  in  the  law,  and  that  kind  of  a  bill 


486  American   Government  and   Politics 

we  are  always  very  glad  to  see  enacted  into  a  law.  Anything 
that  is  for  the  good  of  the  business  we  are  always  very  glad  to  see 
passed- 

191.   Keeping  Track  of  Legislators 

Owing  to  the  slight  interest  taken  in  the  business  of  state  legis- 
latures and  the  brief  accounts  that  appear  in  the  newspapers,  it 
is  difficult  for  the  voter  to  form  any  judgment  on  the  qualifica- 
tions of  his  representatives.  To  overcome  this  difficulty  in  New 
York  City,  the  Citizens'  Union,  a  municipal  organization,  publishes 
annually  a  small  pamphlet  containing  the  records  of  New  York 
representatives  at  Albany.  These  extracts  indicate  the  character 
of  the  publication :  — 

BURNS,  WILLIAM  H.  (Dcni.,  4th  Dist.,  N.Y.)  —  Introduced 
12  bills,  providing  for: 

Pensioning  veterans  who  have  been  in  service  of  the  State  for 
15  years  and  who  have  reached  age  of  65;  payment  of  claim  of 
Bartholomew  Moynahan,  stenographer.  Supreme  Court;  requiring 
that  ingredients  be  printed  on  boxes  and  packages  of  confection- 
ery; payment  of  not  less  than  $1,500  per  year  to  persons  engaged 
in  preserving  public  records;  prohibiting  adulteration  or  mis- 
branding of  foods  or  drugs ;  amending  charter  providing  that  me- 
chanics employed  by  the  city  shall  be  paid  for  holidays  and  half 
holidays;  declaring  contracts  to  control  rates  of  commodities  to  be 
against  public  policy  and  illegal  and  void ;  amending  charter  creat- 
ing position  of  pilots  and  masters  of  fireboats  and  fixing  compensa- 
tion at  $1,500  per  year  (Chap.  547) ;  pensioning  veterans  who  have 
been  in  the  service  of  the  State  for  1 5  years ;  authorizing  admission 
to  bar  examinations  persons  who  have  served  three  years  as  Magis- 
trates, Coroners  or  Justices  of  the  Peace  ;  amending  charter  requir- 
ing assistant  engineers  appointed  by  City  Department  to  be  of  at 
least  five  years'  standing;  increasing  salary  of  Deputy  State  En- 
gineer (Chap.  586). 

RECORD :  Member  of  Rules  Committee,  a  position  of  much 
influence,  yet  continues  a  typical  henchman. 


The  State   Legislature  487 

COLLINS,  DANIEL  J.  (Indep.  League,  15th  Dist.,  Kings)  — 
Introduced  5  bills: 

Making  it  a  felony  to  sell  morphine,  opium  or  cocaine  without 
prescriptions;  two-cent  ferriage  on  Greenpoint  ferry;  three-cent 
fares  on  elevated,  subway  and  street  cars  between  5  a.m.  and  8 
A.M.  and  5  P.M.  and  8  p.m.  in  New  York  City;  amending  primary 
election  law  generally;  abolishing  offal  docks  in  certain  wards  in 
Brooklyn. 

RECORD :   Inconspicuous  and  a  cipher  in  legislation. 

COLNE,  WILLIAM  W.  (Rep.,  nth  Dist.,  Kings)  —  Intro- 
duced 3  bills: 

Extending  jurisdiction  of  Brooklyn  Church  Society  of  Metho- 
dist Episcopal  Church ;  prohibiting  trust  companies  from  establish- 
ing branches,  except  trust  companies  in  New  York  City  may  es- 
tablish branches  in  any  part  of  the  State,  with  the  consent  of  the 
Superintendent  of  Banks ;  erecting  monument  of  John  C.  Fremont 
in  Rockland  Cemetery. 

RECORD :  Fairly  useful  and  attentive ;  has  not  improved  over 
record  of  last  year. 

DONNELLY,  JOHN  H.  (Dem.,  13th  Dist.,  Kings)  —  Intro- 
duced I  bill: 

Providing  for  fixed  salary  and  uniforms  for  City  Marshals. 

RECORD:    Inactive;  useless. 


CHAPTER  XXVI 


THE   JUDICIAL   SYSTEM 


The  effect 
of  short 
terms  on 
judicial  in- 
dependence. 


The  mode 
of  selection 
considered. 


192.    The  Independence  of  the  Judiciary^ 

The  problem  of  what  constitutes  judicial  independence  and 
legislative  incroachments  upon  it  is  thus  treated  by  Mr.  Henry 
B.  Brown,  in  an  address  delivered  before  the  American  Bar 
Association  in  1889:  — 

There  is  a  clear  distinction  between  the  independence  of  the 
judiciary  as  a  governmental  power,  and  the  independence  of  the 
several  judges  composing  it.  There  is  here  all  the  difference  be- 
tween a  theoretical  and  practical  independence  —  in  other  words, 
between  independence  in  law  and  independence  in  fact.  Thus 
the  election  or  appointment  of  judges  for  short  terms  does  not 
trench  in  any  way  upon  the  judicial  functions ;  but  it  subjects  the 
judges,  as  men  endowed  with  the  ordinary  weaknesses  of  humanity, 
to  temptations  wholly  inconsistent  with  that  consciousness  of  inde- 
pendence, which  lends  such  powerful  encouragement  to  a  fearless 
discharge  of  duty.  Judges  ought  not  only  to  be  removed  from 
temptation,  but  as  far  as  possible  from  suspicion.  If  their  re- 
appointment or  re-election  is  made  at  frequent  periods,  dependent 
upon  the  popularity  of  their  decisions,  to  that  extent  their  indepen- 
dence is  subjected  to  the  whims  of  the  executive  or  the  prejudices  of 
the  people. 

I  certainly  do  not  intend  to  enter  upon  any  wholesale  denuncia- 
tion of  the  system  of  electing  judges.  It  has  been  in  vogue  in  most 
of  the  states  for  about  forty  years,  and,  except  in  a  few  of  the  largest 
cities,  has  not  been  attended  by  disastrous  results.  If  it  has  not 
fully  met  the  expectations  of  its  friends,  it  has  certainly  not  justified 
the  evil  prophecies  of  its  enemies.     I  have  known  excellent  judges 


The  Judicial  System  489 

who  owed  their  seats  to  a  political  caucus  and  a  popular  election ; 
I  have  known  men  of  inferior  calibre  who  owed  their  appointments 
to  executive  favor.  If  the  people  occasionally  elevate  men  to  the 
bench  who  have  little  to  recommend  them  beyond  the  ability  to 
pull  wires  at  a  caucus,  the  choice  of  the  executive  is  sometimes 
determined  by  other  considerations  than  the  public  interest.  Upon 
the  whole,  except  in  large  cities,  the  system  of  election  may  be  said 
to  have  worked  reasonably  well,  although  I  believe  the  judiciary 
as  a  rule  stood  higher  under  the  old  method  of  appointment.  The 
ideal  mode  of  choosing  judges  has  perhaps  yet  to  be  discovered. 
In  my  view  more  depends  upon  the  permanency  of  the  judicial 
tenure  than  upon  the  particular  method  of  selection. 

The  most  ardent  advocate  of  the  right  of  the  people  to  choose   Theimpor- 
their  own  magistrates  would  hesitate  to  submit  a  fifty  thousand  length  of 
dollar  lawsuit  to  a  judge  who  held  his  seat  by  annual  election,  if  a   term, 
strong  personal  or   political  friend  of    the    judge  were  retained 
against  him.     If  the  judge  were  elected  but  once  in  four  or  six 
years,  of  course   his   hesitation   would  be  correspondingly  dimin- 
ished, but  the  principle  remains  the  same.     The  tenure  should 
be  during  good  behavior  or  for  so  long  a  term  as  to  beget  in  the 
mind  of  the  judge  a  habit  of  independence  strong  enough  to  over- 
come all  considerations  of  fear  or  friendship.     If  to  this  long  term 
be  added  ineligibility  of  re-election  we  have  the  strongest  possible 
guaranty  of  independence.     In  this  connection  there  should  al- 
ways be  reserved  a  provision  for  the  removal  of  incompetent  judges 
(from  whatever  cause  such  incompetence   may  arise)   upon  the 
address  of  two-thirds  of  each  house  of  the  legislature. 

It  is  not  altogether  easy  to  define  the  term  judicial  independence,  The  judi- 
or  to  determine  what  is  and  what  is  not  an  invasion  of,  or  encroach-  legislature 
ment  upon,  it.  Upon  the  one  hand,  we  shall  all  agree  that  the 
legislature  cannot  remove  a  judge  without  cause  (though  it  seems 
it  may  do  this  indirectly  by  abolishing  the  court),  nor  reduce  his 
salary,  nullify  his  judgments  or  set  at  naught  his  decisions.  Upon 
the  other  hand,  it  will  be  conceded  that  it  possesses  unlimited 
power  to  determine  the  jurisdiction  of  courts,  when  and  in  what 


490 


American  Government  and   Politics 


The  relation 
of  the  judge 
to  the  jury. 


Statutory 
restrictions 
on  judicial 
power. 


manner  suits  shall  be  begun,  and  to  regulate  the  practice,  plead- 
ings and  forms  and  modes  of  proceeding  prior  to  the  trial  and,  with 
some  exceptions,  subsequent  to  the  verdict.  It  may  to  a  certain 
extent  control  the  trial  itself  by  fixing  the  causes  for  which  jurors 
may  be  exempted  or  challenged,  prescribing  rules  of  evidence  and 
laying  down  principles  of  law  which  the  court  is  bound  to  accept 
and  enforce.  Manifestly,  however,  this  power  is  subject  to  certain 
limitations  suggested  by  the  provision  contained  in  all  our  constitu- 
tions, that  the  right  of  trial  by  jury  shall  remain  inviolate. 

The  question,  however,  which  concerns  us  most  directly  in  this 
connection  is,  whether  the  judge  is  a  constituent  part  of  a  jury  trial 
at  common  law.  I  have  never  seen  nor  heard  of  a  jury  trial  in 
which  there  was  not  a  judge  who  presided  and  took  a  more  or  less 
active  part,  and  yet  in  the  ordinary  definitions  of  jury  trial  given  by 
the  lexicographers  and  elementary  writers,  he  is  ignored  as  com- 
pletely as  if  he  were  a  mere  supernumerary.  Even  the  judges 
themselves  seem  to  assume  that  it  is  only  the  jury  and  the  parties 
to  the  suit  who  are  entitled  to  the  constitutional  protection.  The 
question  is  one  of  no  little  importance.  If  the  judge  be  the  mere 
spokesman  of  the  law,  he  is  bound  to  a  blind  obedience  to  the  will 
of  the  legislature  in  all  that  concerns  the  trial ;  on  the  other  hand, 
if  he  be  an  indispensable  and  constituent  factor  in  that  proceeding 
known  to  the  law  as  trial  by  jury,  it  is  difficult  to  see  why  he  is  not 
as  much  entitled  to  protection  against  legislative  interference  in  the 
discharge  of  his  common  law  duties,  as  is  the  jury  in  the  exercise  of 
its  proper  functions. 

These  remarks  are  suggested  by  a  series  of  statutes  which  have 
become  fashionable  in  the  southern  and  western  states,  (for  there 
are  fashions  in  legislation,  and  even  in  judicial  opinions,  as  well  as 
in  dress)  the  object  of  which  is  apparently  to  secure  the  unbiased 
and  unadvised  opinion  of  the  jury  upon  the  facts,  and  an  easy  and 
accurate  settlement  of  bills  of  exceptions,  but  the  effect  of  which  is 
to  shear  the  judge  of  his  proper  magisterial  functions  and  to  reduce 
him  to  the  level  of  a  presiding  officer,  or  the  mere  mouthpiece  of 
counsel.     These  statutes  are  of  the  following  classes: 


The  Judicial   System  491 

(i.)  Laws  prohibiting  judges  from  charging  or  commenting 
upon  matters  of  fact. 

(2.)    Laws  requiring  all  charges  to  be  in  writing.   . 

(3.)  Laws  requiring  the  judge  to  give  such  instructions,  and  such 
only,  as  have  been  submitted  to  him  by  counsel,  either  with  or  with- 
out modification. 

(4.)  Laws  requiring  the  court,  at  the  request  of  counsel,  to  sub- 
mit special  questions  to  the  jury,  to  be  answered  in  addidon  to  their 
general  verdict. 

193.    The  Judiciary  as  the  Guardian  of  Private  Rights* 

The  importance  of  the  judiciary  as  the  guardian  of  fundamental 
private  rights  against  encroachments  on  behalf  of  special  interests 
was  fully  discussed  in  the  Maryland  constitutional  convention 
in  185 1,  and  during  the  debate  one  of  the  delegates  made  this 
argument :  — 

Now,  sir,  paradoxical  as  it  may  seem  to  some,  I  propose  to  show  Dangers  in 
that  there  is  at  least  as  much  reason  for  making  the  judge  indepen-  fro^ofVhe"" 
dent  of  the  people  in  this  ccnmtry,  as  there  is  in  England  for  making  judiciary, 
him  independent  of  the  crown.  But  at  every  point  we  are  met  with 
the  notion,  that  the  people  have  all  power,  and  ought  therefore  to 
have  control  over  the  Judiciary.  Sir,  if  the  people  have  power 
to  do  wrong,  it  is  the  very  purpose  of  government  to  restrain  its 
exercise ;  for  the  only  object  which  men  can  propose  to  themselves, 
by  entering  into  such  an  association  as  civil  Society,  is  to  secure  to 
themselves  the  enjoyment  of  their  rights,  and  protect  themselves 
against  wrong.  Are  the  eternal  and  immutable  laws  of  justice 
less  imperative,  upon  men  when  assembled,  in  large  bodies,  than 
they  are  when  acting  individually?  Masses  are  but  individuals 
in  combination;  and  the  laws  which  enjoin  the  ol)servance  of  jus- 
tice, and  prohibit  violence,  or  the  practice  of  fraud,  arc  as  obliga- 
tory in  the  one  case  as  in  the  other.  Like  the  Being,  from  whom 
they  emanate,  the  Rules  of  truth  and  erjuity  are  the  same  to-day, 
yesterday,  and  forever.  In  them  "  is  no  variableness,  neither 
shadow  of  turninjr."  ...     . 


492 


American   Government  and   Politics 


The  judi- 
ciary to  pro- 
tect funda- 
mental 
rishts. 


The  Judici- 
ary to  stand 
above  con- 
flicting 
interests. 


It  is  obvious,  then,  in  any  just  view  of  the  matter,  that  it  is  our 
duty  to  adopt  such  measures  as  the  faithful  execution  of  the  laws 
requires;  and  such  as  will  secure  to  the  people  their  rights  of  per- 
son, of  property  and  of  reputation.  These  are  the  rights  which 
society  and  government  are  instituted  to  protect,  and  it  is  suicidal 
to  maintain  for  the  people,  or  for  the  government,  a  right,  to  destroy 
or  disturb  them. 

Each  portion  of  the  whole  has  its  respective  and  often  divers  in- 
terests —  in  other  words,  its  wants.  The  -mercantile  interest  may 
be  greater  or  less  than  the  agricultural,  or  those  who  are  laborers 
may  be  fewer  in  number  than  those  who  are  not ;  yet  each  has  an 
undoubted  claim  to  the  care  and  protection  which  his  interests 
refjuire.  And  so  it  is  with  all  portions;  but  it  is  emphatically  the 
case  with  the  feeble  and  the  destitute,  who  have  smaller  means  in 
every  respect  to  protect  themselves,  and  can  look  nowhere  but  to 
the  law  and  its  administrators  for  protection.  Now,  then,  if  all 
this  be  as  I  have  stated,  it  is  manifest  that  your  laws  must  be  free 
of  access  to  all,  ecjual  to  all,  and  certain  for  all.  To  have  them  ad- 
ministered with  a  halting,  hesitating  step  —  to  let  them  bend  one 
way  for  this  man,  another  for  that,  can  but  encourage,  and  must 
sometimes  sanction,  the  doings  of  the  wicked  or  the  passionate  or 
prejudiced,  while  it  will  necessarily  alarm  and  discourage  and 
often  ruin  the  victim. 


Why  judges 
should  not 
be  elected. 


194.    The  Method  of  Selecting  Judges  * 

Perhaps  no  ideal  method  of  selecting  judges  has  yet  been  de- 
vised, but  the  difficulties  of  reaching  a  wise  conclusion  are  in- 
dicated by  the  following  passages  from  a  debate  iji  the  New 
York  constitutional  convention  of  1846:  — 

Mr.  Stow.  It  has  been  said  that  the  people  have  already  dis- 
tinctly decided  that  judges  should  be  elected  directly  by  their  votes. 
I  do  not  consider  that  this  is  so;  I  do  not  believe  the  people  have 
said  any  such  thing,  and  moreover,  I  think  that  the  people  would 
be  very  slow  to  come  to  this  decision ;  and  that  they  would  pause 
a  great  w^iile  and  deliberate  long  and  cautiously  before  they  made 


The  Judicial   System  493 

this  great  change  in  a  fundamental  principle  of  the  government. 
I  do  not  believe  any  mere  majority  of  the  people  either  by  a  direct 
vote  or  through  their  representatives  should  create  the  judiciary 
of  the  State;  the  minority  (for  whose  benefit  this  branch  is  es- 
tablished perhaps  more  than  for  any  other)  should  have  a  decided 
voice  in  the  matter;  they  should  be  heard.  And  I  hope  the  people 
will  bear  in  mind  the  wide  and  decided  distinction  between  the 
executive  and  legislative  powers,  and  the  judiciary.  A  majority 
elect  the  legislature  and  executive ;  and  the  reasons  for  this  are  very 
obvious.  But  a  very  different  mode  of  selecting  the  Judges  should 
be  adopted.  They  are  as  the  shield  of  the  minority,  to  protect 
from  the  oppression  (if  tried)  of  the  majority. 

Mr.  Patterson.  I  am  not,  for  one,  prepared  to  say  that  the  The  people 
people  of  this  State  are  incompetent  to  elect  the  judges  of  their  tol^iect.^" 
courts.  I  believe  that  they  are  as  capable  of  doing  this,  as  of 
electing  a  President  or  Vice-President  of  the  U.S.,  or  a  Governor 
or  Lieutenant-Governor  of  the  State  of  New  York,  or  any  other 
State.  I  am  opposed  to  having  the  judiciary  a  mere  poHtical 
machine;  I  want  to  strip  the  power  of  appointing  the  judges  at 
once  and  entirely,  from  the  executive;  and  I  will  not  consent 
that  this  power,  which  has  been  left  in  the  Governor's  hand  for 
25  years,  shall  be  left  there  any  longer. 

How  are  these  judges  appointed  at  present  ?  The  Constitution  Politics  in 
truly  confers  that  power  on  the  Governor  and  Senate;  but  do 
they  exercise  it,  in  reality?  Certainly  not.  The  judges  of  county 
courts  are  not  thus  appointed.  Practically,  they  are  appointed 
by  a  caucus;  and  this  is  held  in  the  county  where  the  judges  are 
to  officiate ;  the  people  there  get  together  in  a  caucus ;  make  nomi- 
nations for  the  office  of  judges,  and  then  send  these  names  in  to 
the  Governor.  Well,  who  ever  knew  a  Governor  to  refuse  to  send 
in  these  very  names  to  the  Senate,  to  be  confirmed  ?  And  when 
have  we  had  a  Senate  that  refused  to  confirm  these  caucus  nomi- 
nations, sent  to  them  thus  through  the  Governor?  When  one 
political   party  has  the    executive,  then  their  friends  follow  this 


appoint- 
ments. 


494 


American   Government  and   Politics 


A  political 
joke  on  the 
governor. 


plan,  and  their  men  are  appointed;  and  so  it  is  when  the  other 
party  is  in  power;  they  make  the  caucus  nominations,  and  that 
is,  in  reality,  an  appointment. 

I  remember  the  case  some  years  ago  —  in  1834  —  (I  have  told 
the  story  to  another  and  smaller  body  than  this,  and  in  this  city)  — 
some  persons  got  together,  in  Franklin  county  and  resolved  them- 
selves into  a  Democratic  Republican  County  Convention.  Mr. 
A.  B.  was  made  chairman,  and  Mr.  C.  D.,  Secretary;  and  after 
a  while  it  was  declared  unanimously  that  Messrs.  E.  F.  and  G.  H. 
had  a  majority  of  all  the  votes  then  present  at  this  great  county 
convention,  and  they  were  then  unanimously  recommended  there- 
fore to  Governor  Marcy  for  nomination  to  the  Senate.  The  pro- 
ceedings came  down  to  him  headed,  "Proceedings  of  the  Demo- 
cratic Republican  County  Convention  of  Franklin,"  &c.,  and 
so  on;  and  Governor  Marcy,  seeing  the  words  "Democratic 
Republican,"  naturally  supposed  surely  they  were  all  right;  that 
was  strong  enough  recommendation,  in  all  conscience,  for  him; 
and  so  he  sent  in  these  two  names  to  the  Senate,  and  they  were 
confirmed.  And  it  turned  out  afterward,  upon  inquiry,  that  they 
had  thus  appointed  a  couple  of  Whigs,  instead  of  a  couple  of 
Democrats.  (Much  laughter.)  And  this  is  a  practical  illustra- 
tion of  the  mode  of  appointing  these  judges  that  has  been  in  opera- 
tion over  20  years. 


The  English 
and  Ameri- 
can systems 
compared. 


Mr.  Bascom.  The  present  mode  of  appointment  by  the  Gov- 
ernor and  Senate  has  received  too  general  popular  condemnation 
and  has  in  my  judgment  been  attended  with  such  results  as  not 
to  justify  its  continuance.  The  judgment  and  feeling  not  only 
in  the  Convention  but  throughout  the  State  is  against  it.  The 
idea  is  fast  being  abandoned  that  any  portion  of  the  public  servants 
should  enjoy  independence  of  the  people  whose  interests  they  have 
in  charge,  whose  business  they  transact,  whose  rights  they  protect 
or  disregard.  The  idea  of  the  necessity  of  judicial  independence 
in  England  is  entirely  different  from  that  conveyed  by  the  use  of 
the  term  here.     In  England,  the  term  means  an  independence  of 


The  Judicial  System  495 

the  crown,  and  to  preserve  it  the  life  tenure  of  the  judges  was 
adopted,  while  here  the  advocates  of  judicial  independence  are 
the  opponents  of  judicial  responsibility  to  the  people.  But  we 
require  no  such  independence  here,  but  rather  that  mode  of  selection 
that  shall  secure  the  honest  discharge  of  official  duty,  by  the  most 
direct  responsibility. 

We  have  had  appointed  judges  under  the  present  constitution.   Appointed 

1      1  -      TT         •  •        1         •     1  judges  not 

How  has  the  system  worked .''  How  m  your  counties,  has  it  been  above  petty 
successful  in  securing  the  best  integrity  and  ability?  Has  it  even  politics, 
worked  well  in  regard  to  the  judges  of  your  higher  tribunals? 
When  was  your  State  more  deeply  humbled  and  disgraced,  than 
when  the  judges  of  one  of  your  highest  courts  chaffered  on  the 
bench  for  places  of  profit  within  their  own  power  of  appointment, 
when  the  junior  became  the  chief,  when  the  glitter  of  small  change 
had  greater  charms  in  the  eyes  of  the  seniors  than  the  purity  of 
judicial  ermine,  and  they  went  down  to  clerks'  stools  to  put  law- 
yers' papers  into  pigeon  holes  and  keep  the  dust  off  them  for  six 
cents  apiece?    These  were  your  appointed  judges. 

But  I  have  an  objection  to  long  terms.  I  believe  as  firmly  as  The  reasons 
any  one,  that  in  general,  this  mode  of  selection  would  be  sue-  terms, 
cessful,  but  it  would  not  always  be  so.  The  public  ear  might  be 
sometimes  abused,  and  incompetent  or  improper  men  be  placed 
upon  the  bench,  and  I  would  afford  a  reasonably  frequent  oppor- 
tunity of  correcting  such  mistakes  as  should  be  made.  Eight  or 
ten  years  term  is  proposed  by  some,  but  I  cannot  see  the  pro- 
priety of  making  the  judicial  term  four  or  five  times  as  long  as 
the  gubernatorial  or  senatorial  term.  It  would  not  give  the  op- 
portunity that  ought  to  be  afforded  for  correcting  the  mistakes 
that  might  be   made. 

195.    The  Jury  System 
This  eloquent  defense  of  the  jury  is  by  Mr.  Choate:  — 
The  truth  is,  however,  that  the  jury  system  is  so  fixed  as  an   The  jury 

.    ,  r  ,..,...  .     ,  1   •       ^<^  'ind  civic 

essential  part  of  our  political  institutions;    it  has  proved  itself  to   training, 
be  such  an  invaluable  security  for  the  enjoyment  of  life,  liberty 


496 


American   Government  and   Politics 


The  jury  in 

criminal 

cases. 


Judges  as 
well  as 
juries  af- 
fected by 
popular 
clamor. 


and  property  for  so  many  centuries;  it  is  so  justly  appreciated 
as  the  best  and  perhaps  the  only  known  means  of  admitting  the 
people  to  a  share,  and  maintaining  their  wholesome  interest,  in 
the  administration  of  justice ;  it  is  such  an  indispensable  factor 
in  educating  them  in  their  personal  and  civil  rights;  it  affords 
such  a  school  and  training  in  the  law  to  the  profession  itself;  and 
is  so  embedded  in  our  constitutions  which,  as  I  have  said,  declare 
that  it  shall  remain  forever  inviolate,  requiring  a  convention  or  an 
amendment  to  alter  it  —  that  there  can  be  no  substantial  ground  for 
fear  that  any  of  us  will  live  to  see  the  people  consent  to  give  it  up. 

For  the  trial  of  persons  charged  with  crimes,  I  do  not  believe 
that  any  material  alteration  of  its  character  will  ever  be  thought 
of.  It  is  so  much  better  that  ten  guilty  men  should  escape  than 
that  one  innocent  man  should  suffer.  In  truth,  in  these  days  of 
multiplied  statutory  crimes  and  misdemeanors,  a  large  majority 
of  guilty  men  do  escape  by  not  being  found  out,  by  not  being  ac- 
cused, by  not  being  brought  to  trial  after  indictment,  and  largely, 
too,  by  setting  aside  the  verdict  by  Courts  of  Appeals,  so  that  our 
established  public  policy  seems  to  lean  against  any  harsh  or  rigid 
arbitrary  application  of  the  criminal  laws.  By  accepting,  as  we 
must,  the  rule  that  the  defendant's  guilt  must  be  established  be- 
yond all  reasonable  doubt  before  he  can  be  convicted,  it  is  hard 
to  see  how,  as  long  as  three,  or  two,  or  one  honest  man  on  the  jury 
has  a  reasonable  doubt,  the  prisoner  can  justly  be  deprived  of  the 
benefit  of  it  without  destroying  our  cardinal  rule.  But  the  in- 
superable answer  to  any  change  so  far  as  criminal  trials  are  con- 
cerned, is  the  question  what  substitute  will  you  provide  —  and 
none  has  ever  been  suggested  that  would  command  the  approval 
of  lawyers  or  of  laymen.  .  .  . 

There  is  one  serious  infirmity  in  trial  by  jury  in  criminal  cases 
in  times  of  great  excitement,  especially  when  the  more  boisterous 
portion  of  the  press  undertakes,  as  it  generally  does,  to  prejudice 
the  case  and  to  condemn  the  accused  unheard.  The  jury,  under 
such  circumstances,  find  it  hard  to  resist  the  impression  of  public 
sentiment  so  loudly  proclaimed.     The  courage  and  firmness  which 


The  Judicial  System  497 

stood  as  an  effectual  barrier  against  the  wrath  and  tyranny  of 
kings,  and  which  won  for  the  petit  jury  so  much  of  its  prestige 
and  glory  in  English  history,  are  certainly  Hkely  at  times  to  fail 
when  confronting  the  outraged  sentiment  of  that  more  potent  and 
dangerous  despot  —  an  enraged  democracy.  Fortunately,  such 
tempests  of  popular  fury  are  very  rarely  directed  against  innocence, 
and  other  tribunals  do  not  withstand  their  fury  while  the  storm 
lasts,  any  better  than  the  jury.  Judges  of  the  first  instance,  and 
even  the  local  tribunals  of  appeal,  have  been  found  equally  power- 
less to  stem  the  tide.  Study  the  reports  of  our  own  [New  York] 
Court  of  Appeals  in  recent  years,  and  you  M'ill  find  more  than  one 
instance  of  public  wrath  in  our  great  metropolis,  fanned  into  a 
devouring  flame  by  some  lawless  newspapers  and  a  somewhat 
lawless  investigating  committee,  where  the  trial  Court,  uncon- 
sciously influenced  and  loudly  sustained  by  public  opinion,  com- 
mitted fatal  errors  against  the  prisoner,  which  were  confirmed  by 
the  local  tribunal  of  appeal,  and  it  was  only  when  the  storm  had 
passed  and  the  atmosphere  cooled,  that  the  Court  of  last  resort 
sitting  in  the  remote  capital  corrected  the  error,  and  each  time 
with  the  unfortunate  result  that  an  apparently  guilty  prisoner, 
who  had  been  convicted  upon  illegal  evidence  or  rulings,  escaped 
altogether. 

One  other  charge  against  trial  by  jury  in  criminal  cases  is  the  '^^^  . 
possibility  of  corruption  and  bribery  of  individual  jurors.  But  bribery, 
in  my  judgment,  the  common  estimate  of  the  extent  of  this  danger 
is  greatly  exaggerated.  There  are  but  a  few  well  authenticated 
cases  of  such  crimes  in  the  jury  box.  I  have  had  little  to  do  with 
the  trial  of  criminal  cases,  but  in  an  experience  of  more  than  forty 
years  in  the  trial  of  civil  cases  before  juries,  I  cannot  recall  one 
case  where  I  had  reason  to  believe  that  corruption  or  bribery  had 
reached  a  single  juror.  And  if  you  can  show  me  a  few  authentic 
cases  of  such  infamy  in  the  jury  box,  I  will  undertake  to  match 
them  with  an  equal  number  of  similar  crimes  committed  by  judges 
who  have  been  properly  exposed  and  punished.  .  .  . 

Let  me  say  what  I  understand  by  a  jury  trial.     Well,  the  first  and 


498 


American   Government  and  Politics 


The  judge 
in  jury 
trial. 


The  twelve 
men. 


The  ad- 
vocates. 


most  essential  element  in  a  jury  trial  is  a  wise,  learned,  impartial 
and  competent  judge  —  a  judge  qualified  by  his  character,  learn- 
ing and  experience  to  preside  over  and  control  the  proceedings, 
and  to  advise  the  jury  as  to  the  discharge  of  their  duties.  Add 
to  the  ordinary  modicum  of  legal  learning,  courage,  honesty  and 
common  sense,  and  you  have  the  kind  of  a  judge  I  mean.  If  we 
say  that  an  adequate  supply  of  such  judges,  possessed  of  these 
ordinary  qualities  of  manhood  cannot  be  found,  we  libel  our  own 
profession,  we  befoul  our  own  nest  wherein  they  were  bred.  Of 
course  they  cannot  be  had,  if  we  apply  to  judicial  nominations 
our  favorite  democratic  idea  that  one  man  is  as  good  as  another 
for  any  office ;  of  course  they  cannot  be  had  if  selected  for  partisan 
services;  of  course  they  cannot  be  had  if  appointed  by  a  boss, 
or  if  they  are  required  or  allowed  to  pay  for  their  nominations 
directly  or  indirectly;  but  they  can  be  had  if  selected  on  their 
merits  from  the  gladiators  in  the  same  arena,  as  England  has  se- 
lected her  judges  since  1688,  always  with  assured  success.  They 
must  be  had,  if  our  institutions  are  to  be  preserved. 

And  then  there  are  the  twelve  honest  and  intelligent  jurors 
drawn  from  the  body  of  the  community,  sworn  to  pass  upon  the 
issue,  and  return  whence  they  came  when  their  task  is  done.  If 
we  say  that  the  average  citizen  is  not  equal  to  the  duty,  we  belie 
our  American  manhood,  we  contradict  the  whole  course  of  judi- 
cial history,  and  we  fail  of  our  duty  to  the  communities  of  which 
we  form  a  part,  which  rely  upon  us  implicitly  for  the  legislative 
machinery  by  which  juries  are  to  be  secured. 

And  then  you  must  have  the  earnest  and  loyal  advocates,  sworn 
"to  do  their  whole  duty;  which  means  to  employ  all  their  powers 
and  attainments,  and  to  use  their  utmost  skill  and  eloquence,  in 
exhibiting  the  merits  each  of  his  own  side  of  the  case.  In  doing 
so,  as  Mr.  Justice  Curtis  well  said,  the  advocate  only  does  his  duty, 
and  if  the  adversary  does  his,  the  administration  of  justice  is  se- 
cured. I  omit  not  the  indispensable  presence  of  the  public,  an 
ever  essential  feature  in  this  great  historic  forum,  for  justice,  though 
blind  to  the  parties  and  to  everything  but  the  merits  of  the  case. 


The  Judicial  System  499 

must  never  be  secret.  It  is  the  sacred  possession  of  the  people 
in  whose  name  and  by  whose  authority  it  is  done.  Do  you  say 
again  that  this  is  an  ideal  picture  ?  Who  of  you  has  not  seen  it? 
Who  of  you  does  not  know  that  it  is  not  only  possible,  but  can  be 
and  ought  to  be  the  actual  and  everyday  scene  in  our  Courts? 

An  attack  was  made  on  the  jury  in  the  New  York  constitutional 
convention  in  1894,  and  it  was  met  by  a  firm  declaration  against 
any  innovations  by  Mr.  Root :  — 

I  do  not  now  believe,  notwithstanding  the  very  able  and  force-  There  is  no 
ful  addresses  which  have  been  made  to-night  —  that  the  people  p°p  ^^""^P" 

°  r      r        position  to 

of  the  state  of  New  York  are  dissatisfied  with  their  time-honored  the  jury, 
institution  of  trial  by  jury.  I  am  not  dissatisfied  with  it,  sir. 
I  believe  that  it  is  one  of  the  most  important,  most  vital,  most 
sacred  of  the  institutions  which  maintain  our  free  and  popular 
government.  I  believe  that  it  serves  to  bring  the  people  —  not 
lawyers  and  judges,  the  plain  people  —  who  vote,  and  who  under- 
lie the  whole  structure  of  our  government,  into  immediate  partic- 
ipation in  the  administration  of  law.  I  believe  that  it  mitigates 
the  severe  logic  of  the  law,  and  make  its  administration  tolerable. 
I  believe  that  it  reaches  correct  results  in  fact  and  in  reason, 
though  not  always  by  logic;  and  I  believe,  sir,  that  the  very 
essential  feature  of  this  system  is  the  requirement  of  unanimity. 
I  think  that  the  amendment  which  aims  at  permitting  less  than 
the  entire  body  of  the  jury  to  render  a  verdict  is  aimed  at  the 
very  heart  of  the  jury  system,  and  is  nothing  short  of  revolution.  .  .  . 

I  say  that  this  is  a  most  vital  matter,  because  this  is  where  the  The  jury  a 
people  are  concerned  in  the  administration  of  the  law.  It  is  the  jn'stitution 
muniment  of  their  title  to  control  of  that  administration.  It  is 
the  means  by  which  they  protect  themselves  against  power,  against 
wealth,  and  against  the  judge  on  the  bench.  I  am  not  surj^rised 
that  we  should  have  expressions  from  judges  which  tend  in  der- 
ogation of  the  system  of  trial  by  jury,  for  the  system  of  trial  by 
jury  was  designed  and  has  served  always  as  a  protection  against 
judges,  and  the  time  comes  often  and  again  when  the  people  need 


500 


American   Government  and   Politics 


Theory 
against  the 
jury;  prac- 
tice for  it. 


that  protection,  when  individual  liberty  needs  that  protection; 
and  I  will  never  consent,  if  I  vote  alone,  against  overwhelming 
majorities,  to  take  away  one  jot  or  tittle  of  the  strength,  stability, 
and  the  perpetuity  of  that  safeguard.     (Applause.) 

Mr.  President,  I  have  said  all  that  I  have  to  say,  with  one  ex- 
ception: We  have  had  read  to  us  to-night  a  number  of  expressions 
of  opinion  from  text-writers,  from  jurists,  from  learned  judges, 
in  England,  in  Illinois,  in  Michigan,  in  Iowa,  and  in  New  York; 
but  in  England,  in  lUinois,  in  Michigan,  in  Iowa,  in  New  York, 
there  still  remains  the  system  of  trial  by  jury,  with  its  essential 
characteristic  of  a  unanimous  verdict.  Theory  is  against  it, 
Mr.  President,  but  the  plain  practical  common-sense  of  the  Anglo- 
Saxon  race  has  wrought  out  and  holds  to,  and  I  believe  means  to 
hold  to  this,  their  peculiar  method  of  concihating  disputes  and 
of  ending  litigation.  The  plain  sense  of  the  people,  through 
hundreds  of  years  in  practical  experiment,  sets  itself  still  against 
the  theories  of  jurists.  The  plain  sense  of  the  people  will  have 
to  pass  upon  this  revised  and  amended  Constitution.  Not  the- 
orists, not  jurists,  not  text-writers.  To  them  we  must  appeal, 
and  let  us  apply  their  good  common  sense  to  the  work  which  we 
do.  I  hope,  Mr.  President,  that  this  Convention  will  not  attack 
the  system  of  trial  by  jury. 


The  many 
processes 
involved  in 
a  lawsuit. 


196.    The  Law's  Delays 

In  1884  the  American  Bar  Association  appointed  a  special 
committee  to  inquire  into  the  possibility  of  reducing  the  number 
of  delays  which  occurred  in  judicial  processes,  and  this  committee 
made  a  long  and  interesting  report  from  which  only  a  few  extracts 
can  be  given  here :  — 

The  theory  of  a  lawsuit  is,  to  hear  what  the  parties  have  to  say, 
and  to  decide  between  them.  In  doing  this,  the  simplest  and 
most  direct  method  is  the  best.  The  plaintiff  must  make  his 
statement;  that  is  the  first  step;  the  defendant  must  make  his 
answer  or  be  held  to  admit  the  truth  of  the  complaint;  that  is  the 
second;   if  they  differ,  the  truth  of  the  fact  must  be  ascertained; 


The  Judicial  System  501 

that  is  the  third ;  and  then  the  law  must  be  applied,  which  is  the 
fourth  step  and  the  last  if  there  be  no  appeal.  These  several 
steps  may  be  shorter  or  longer.  A  short  one  is  the  best  if  it  be 
a  sure  one.  Some  side  steps  may  have  to  be  taken,  according 
to  the  circumstances  of  particular  cases.  But  in  all,  not  a  single 
unnecessary  step  should  be  required  or  allowed.  In  other  words, 
no  form  or  proceeding  should  be  permitted  which  is  not  necessary 
to  ascertain  or  ]:)reserve  the  rights  of  the  parties,  no  form  or  pro- 
ceeding that  cannot  be  understood  by  either  party,  none  that  causes 
needless  delay  or  needless  expense.  There  must,  however,  be 
a  complaint,  and  if  there  be  an  answer  there  must  be  a  trial  of 
the  fact,  a  judgment  of  the  law,  and  an  execution  of  the  judgment, 
with  occasional  incidental  proceedings,  such  as  orders  made  in 
the  progress  of  the  cause  to  insure  the  efficiency  of  the  judgment. 
In  other  words,  there  may  be  in  civil  actions  these  several  processes 
—  the  complaint,  the  answer,  possibly  a  reply,  the  provisional 
remedies  of  arrest,  replevin,  injunction,  attachment,  receiver 
or  deposit,  a  trial  of  the  facts  in  issue,  the  judgment  of  the  law, 
the  execution  of  the  judgment  and  one  or  more  appeals,  twelve 
or  fourteen  distinct  processes,  most  of  which  are  or  may  become 
necessary  in  a  severely  contested  law-suit.  The  problem  is  how 
to  expedite  them  all,  preserving  at  the  same  time  every  right  of 
the  parties,  and  to  cut  off,  with  an  unsparing  hand,  whatever  is 
not  necessary  to  this  design.  .  .  , 

Let  us  take  our  seats  as  spectators  of  a  severely  contested  jury  Delay  in 
trial  in  a  court  of  general  jurisdiction  of  one  of  our  cities,  say  in  started, 
the  City  of  New  York,  and  see  how  one  of  them  at  least  is  con- 
ducted. The  hour  of  the  sitting  is  fixed  for  eleven  o'clock.  At 
that  hour  a  crowd  of  lawyers,  suitors,  witnesses,  and  spectators 
is  in  attendance  ready  for  the  judge.  He  comes,  perhaps  punctu- 
ally, and  perhaps  not  punctually,  but  after  a  few  minutes,  or  a 
quarter  of  an  hour,  or  half  an  hour,  nobody  can  foretell  which. 
At  last  he  appears,  and  begins  by  asking  what  suits  are  ready,  or 
rather  by  calling  over  the  calendar,  an  unintended  but  real  in- 
vitation to  the  parties,  one  or  both  of  them,  not  to  be  ready.     This 


502  American   Government  and  Politics 

call,  and  the  little  debates  which  follow,  take  perhaps  another 
half  hour;  so  that  the  spectators  may  think  themselves  fortunate 
if  they  see  a  suit  begun  as  early  as  twelve  o'clock.  It  is  then 
brought  on  and  the  names  of  the  attending  jurymen  are  called 
as  they  are  drawn  one  by  one  from  the  wheel.  Some  questioning 
generally  follows:  now  and  then  a  contest  and  a  side  trial  over 
one  or  more  of  the  names  drawn;  but  at  last  a  jury  is  completed. 

The  trial.  Then  the  case  is  opened  by  the  plaintiff,  and  the  examination 

of  witnesses  begins.  When  three  or  four  questions  have  been 
put  and  answered,  some  objection  is  made;  it  is  duly  debated 
for  a  few  minutes,  or  it  may  be  for  an  hour,  or  even  for  hours; 
the  judge  decides  the  question  be  allowed  or  disallowed;  an 
exception  is  noted,  and  the  cjuestioning  starts  again.  In  a  short 
time,  however,  comes  another  objection,  when  the  process  of 
debate,  decision  and  exception  is  repeated,  and  so  on  until,  per- 
haps, the  day  is  spent  before  the  first  witness  is  dismissed,  and  an 
adjournment  to  the  next  day  is  taken.  The  next  day  comes  and 
goes,  with  the  like  experience,  and  so  another,  and  yet  another, 
until  at  last,  the  testimony  being  finished,  a  discussion  is  opened 
upon  one  or  more  rerjuests  to  the  judge  for  his  charge  to  the  jury; 
then  follows  the  charge,  the  exceptions  to  the  charge  come  after, 
and  finally  the  verdict,  with  perhaps  fifty  or  an  hundred  exceptions 
on  the  record. 

The  appeal.  The  trial  Ijeing  ended,  a  re-examination  of  all  the  legal  ques- 
tions that  arose  can  generally  be  had  if  either  party  desires  it, 
and  one  or  the  other  will  desire  it,  if  he  thinks  he  can  derive  ad- 
vantage from  it.  The  method  of  re-examination  differs  in  dif- 
ferent states;  in  some  the  questions  are  carried  directly  to  an- 
other court;  in  other  states  they  are  re-examined  in  the  same 
court  by  other  judges  or  possibly  by  the  same  judge.  The  success 
of  whatever  method  de[)ends  upon  the  ability  of  the  judges;  of 
the  trial  judge  in  the  first  place,  and  of  the  re-examining  judges 
in  the  second.  An  incompetent  judge  is  an  expensive  officer. 
It  were  better  for  the  state  if  all  the  incompetent  aspirants  for 
judgeships  who  beset  nominating  conventions  or  executive  cham- 


The  Judicial   System  503 

bers,  were  provided  for  at  the  public  expense  in  some  other  way, 
than  that  they  should  be  seated  upon  the  bench  to  harass  and  be- 
wilder suffering  counsel  and  more  suffering  suitors. 

Whatever  may  be  said  in  other  respects  of  the  institution  of  The  jury 
the  jury  for  civil  cases,  it  cannot  be  denied  that  it  is  the  cause  of  delay, 
great  delays.  This  is  the  effect  principally  of  two  causes,  one  of 
which  is  the  requirement  of  unanimity.  When  the  jury  is  dis- 
charged, by  reason  of  disagreement,  the  case  has  to  be  retried. 
Another  and  much  more  considerable  cause  of  delay  in  the  final 
result,  is  the  ordering  of  a  new  trial  for  misdirection  of  the  court 
or  an  erroneous  admission  or  rejection  of  evidence.  This  may  be 
obviated  to  a  great  extent  by  requiring  the  verdict  to  be  special, 
upon  questions  submitted  by  the  judge.  The  result  would  be 
that  an  error  of  the  judge  upon  the  trial  would  not  require  a  new 
trial,  unless  the  error  related  to  a  finding  essential  to  the  judgment; 
that  is,  one  without  which  the  judgment  could  not  have  been 
rendered. 

Costs,  too,  have  something  to  do  with  the  delays.  Two  theories  ^°^*^  ^^^ 
are  propounded  respecting  them;  one  that  they  should  be  made 
sufficient  to  cover  all  the  expenses  of  the  successful  litigant;  the 
other  that  they  should  cover  only  the  fees  of  the  court  officers,  such 
as  clerks  and  sheriffs.  On  one  side  it  is  argued  that  a  party  who 
has  put  his  adversary  to  needless  expense  and  suffered  defeat  in 
the  suit,  ought  justly  to  indemnify  this  adversary;  on  the  other 
side  it  is  argued  that  no  system  of  costs  will  prevent  an  unjust 
claim  or  an  unjust  defense,  and  that  in  most  instances  they  are 
instruments  of  oppression,  rather  than  of  justice,  and  if  they  are 
made  to  depend  at  all  upon  the  discretion  of  the  judge  the  discre- 
tion is  dangerous.  The  choice  between  the  two  depends  more 
upon  experience  than  on  theory.  And  we  think  experience  has 
shown  that  to  allow  no  costs,  except  the  fees  of  the  officers,  is 
better  than  to  attempt  an  indemnification  for  expenses  of  the  pre- 
vailing party. 

It  appears  to  us  that  a  great  deal  of  time  is  wasted  and  no  little 
uncertainty  introduced  into  the  law  by  the  habit  of  delivering  long 


504 


American   Government  and   Politics 


Preference 
to  certain 
cases. 


The 

question  of 
appeals. 


opinions  at  the  time  of  pronouncing  judgment.  Anyone  who 
will  look  into  the  decisions  of  Lord  Mansfield  will  perceive  the 
difference  between  the  old  habit  and  the  new,  much  to  the  dis- 
paragement of  the  latter.  Our  volumes  of  reports  have  too  many 
dissertations  in  the  shape  of  opinions.  The  inconvenience  thence 
arising  is  manifold;  the  time  of  the  judges  is  wasted;  the  reports 
and  the  cost  of  the  reports  are  grievously  swollen,  and  worst  of 
all  there  is  the  chance,  with  reverence  be  it  spoken,  that  some  of 
the  dissertations,  if  their  expansion  goes  on,  may  be  delivered  in 
clouds  of  verbosity,  covering  as  with  a  fog  the  points  to  sight  and 
steer  by. 

We  think,  moreover,  that  giving  by  statute  a  preference  to 
certain  cases  on  the  calendar  is  a  mistake.  The  courts  may  well 
be  trusted  for  the  regulation  of  their  own  calendars;  when  they 
find  a  case  to  be  of  such  public  importance  as  to  require  a  hearing 
before  all  others  they  will  be  quite  sure  to  hear  it.  Whenever  the 
state  enacts  that  one  case  shall  be  heard  before  another,  which 
stands  ahead  of  it  in  order,  it  confesses  its  own  negligence  or  in- 
abihty  to  provide  a  prompt  hearing  for  all.  .  .  . 

The  question  of  appeal  is  always  a  serious  one.  How  many 
successive  appeals  should  be  allowed,  and  within  what  time  should 
they  be  taken  ?  The  answer  to  the  first  depends  upon  the  organiza- 
tion of  the  courts.  In  the  State  of  New  York,  for  instance,  where 
there  are  upwards  of  seventy  co-ordinate  trial  courts  of  the  highest 
original  jurisdiction,  it  would  be  out  of  the  question  to  give  an 
appeal  from  each  of  them  to  the  Court  of  Appeals;  there  must, 
of  necessity,  be  a  previous  sifting  of  the  case  by  a  proceeding  in 
the  nature  of  an  appeal  in  the  original  court  itself;  that  is,  an 
appeal  from  one  judge  to  two  or  three  co-ordinate  judges.  In 
other  states  the  same  reasoning  may  not  apply,  and  one  appeal 
may  suffice.  The  time  allowed  for  an  appeal  should  be  short. 
It  is  now  in  many  instances  long,  grievously  long  indeed ;  a  year, 
two  years,  sometimes  six  or  seven. 


The  Judicial   System  505 


197.   Corruption  in  the  Administration  of  the  Criminal  Law  * 

In  the  following  testimony  by  Police  Captain  Max  L.  Schmitt- 
berger  before  the  Lexow  investigating  committee  in  New  York 
in  1894,  the  methods  which  a  corrupt  police  force  may  employ 
to  make  private  gains  are  fully  described :  — 

Q.   While  you  were  in  command  of  that  precinct,  we  want  to  ^  ^°"^- 
understand  the    condition  of    affairs  in  that  precinct,  who  was   wardman 
your  wardman?     A.   When  I  came  there  Campbell  and  Martin  selected, 
were  the  detectives. 

Q.  Did  you  then  have  a  man  appointed  with  whom  you  held 
confidential  relations?     A.    Yes,  sir. 

Q.  Now,  did  you  appoint  Gannon  from  that  squad  or  from 
that  precinct,  or  did  you  have  him  taken  from  another  precinct? 
A.   I  had  him  transferred  and  brought  there. 

Q.  And  he  was  recognized  as  the  captain's  confidential  man? 
A.   Yes,  sir. 

Q.  And  whose  principal  duty  was  it  to  make  what  are  known 
as  the  collections  in  the  several  precincts  to  the  captain?  A. 
Yes,  sir. 

Q.  When  you  had  Gannon  transferred,  did  you  have  a  con- 
versation with  him  relating  to  what  collections  might  be  made  in 
that  precinct?     A.   Yes,  sir. 

Q.  And  what  fines  were  laid  out,  what  fields  were  indicated.  Collections 
where  collections  could  be  made?  A.  There  was  nothing  there  g W)s^°  "^^ 
only  policy  shops. 

Q.  About  these  policy  shops,  did  you  ascertain  the  number? 
A.   Yes,  sir. 

Q.  How  many  were  in  that  precinct  at  that  time,  do  you  re- 
member?    A.   About  ten,  I  guess. 

Q.  And  how  much  did  you  determine  that  they  should  pay? 
A.   Twenty  dollars  a  month  each. 

Q.   Was  that  the  established  custom?     A.   Yes,  sir. 

Q.  Give  us  your  first  knowledge  of  that  custom,  how  it  became 
known   to   you   the   poHcy   shops    were   to   pay   $20   a   month. 


5o6 


American  Government  and   Politics 


A.  The  policy  shops  all  there  in  the  precinct  and  in  the  upper 
part  of  the  city  are  under  a  man  by  the  name  of  Parker,  and  if  I 
remember  right,  Parker  came  to  the  station-house  and  saw  me, 
and  told  me  how  many  shops  he  had  in  the  precinct ;  that  was  all ; 
and  he  was  introduced  to  Gannon,  and  Gannon  did  the  rest. 

Q.  Were  there  any  other  sources  of  collecting  except  the  policy 
shops  in  that  precinct?  A.  There  was  the  liquor  dealers'  or- 
ganization there,  Bohemian  Liquor  Dealers'  organization;  they 
contributed  about  $80  a  month,  I  think. 

Q.  Now,  of  the  mdney  that  was  paid  by  the  policy  shops  and 
of  the  money  that  was  paid  by  the  Bohemian  Liquor  Dealers' 
association,  how  much  did  you  receive?  A.  Well,  all  but  20 
per  cent. 

Q.  That  was  the  recognized  thing  in  all  the  precincts?  A. 
I  guess  so 

Q.   So  far  as  you  know?     A.  Yes,  sir. 

Q.  About  what  was  the  sum  that  you  collected  there  every 
month,  after  paying  Gannon  his  20  per  cent;  there  were  10  policy 
shops,  that  would  be  $200?    A.   Yes. 

Q.  Then  there  was  $80  from  the  Bohemian  Liquor  Dealers' 
association?     A.   Take  20  per  cent  ofif  that. 

Q.  Now,  while  you  were  captain  of  that  precinct  and  in  receipt 
of  that  money  every  month,  did  you  give  any  part  of  that  money 
or  of  any  money  to  any  other  police  ofificial?    A.   I  did. 

Q.   You  did?     A.   Yes,  sir. 

Q.   To  whom  did  you  give  it?     A.    Inspector  WiUiams. 

Q.  To  Inspector  Williams;  was  Williams  the  inspector  of 
that  inspection  district?     A.    Yes,  sir. 

Q.  That  precinct  was  within  his  jurisdiction  as  inspector? 
A.   Yes,  sir, 

Q.  Will  you  please  tell  us  how  it  was  first  arranged  between 
Williams  and  yourself  that  you  should  give  him  a  portion  of  the 
money  collected  by  you  in  that  precinct  ?  A.  I  succeeded  Captain 
Gunner,  who  had  been  retired ;  the  first  day  I  went  to  the  station- 
house  Captain  Gunner  came  in  to  get  some  things  belonging  to 


The  Judicial   System  507 

himself  in  the  ofifice;    Captain  Gunner  and  I  had  a  confidential 
talk  as  to  how  much  he  had  given  to  the  inspector. 

Q.  Just  tell  us  the  talk,  if  you  please,  captain.  A.  I  asked 
Captain  Gunner  how  much  did  you  give  to  the  inspector;  because 
I  don't  want  to  give  any  less  than  you  have  given,  and  Captain 
Gunner  told  me  what  he  had  given. 

Q.  What  did  he  say;  how  much?  A.  He  said  he  sent  $50, 
sometimes  $75,  just  as  he  felt;  between  $50  and  $75  a  month 
to  the  inspector.  He  told  me  that  he  had  put  this  money  in  an 
envelope  and  given  it  to  Campbell,  that  Campbell  had  given  it 
to  Sergeant  Price  in  Inspector  Williams'  office. 

Q.  Sergeant  Price  who  is  now  captain?  A.  Yes,  sir;  I  know  ^°^  ^^e 
him;  Williams  didn't  think  that  I  needed  any  intermediate  per-  delivered, 
son;  I  went  directly  to  him  and  handed  him  the  money. 

Q.   How  much  did  you  hand  him,  captain?     A,    Fifty  dollars. 

Q.  Did  you  say  anything  to  liim  when  you  handed  it  to  him? 
A.   No,  sir. 

Q.   Did  he  say  anything  to  you?     A.   No,  sir. 

Q.   Placed  it  in  an  envelope?    A.   Yes,  sir. 

Q.   And  handed  it  to  him  without  a  word?     A.   Yes,  sir. 

Q.  In  his  office  at  headquarters?  A.  In  his  office  at  head- 
quarters. 

Q.   Now,  captain,  we  want  to  have  you  place  upon  the  record  Why  the 
here  why  you  gave  part  of  the  money  collected  by  you  to  Williams  shared, 
as  the  inspector.     A.   Well,  it  was  in  Williams'  power  to  send 
men  up  there  to  raid  those  policy  shops  over  my  head;  to  prevent 
him  from  doing  that;    of  course,  upon  consideration  of  receiving 
that  sum  of  money  every  month  he  wouldn't  do  it. 

Q.  So  that  in  order  to  enable  you  to  derive  the  profit  or  ad- 
vantage from  these  policy  shops  doing  business  in  that  precinct 
you  divided  the  proceeds  mth  your  superior  officer,  the  inspector? 
A.   Yes,  sir. 

Q.  Now  we  have  it,  that  this  money  was  paid  to  him  in  con- 
sideration that  he  would  allow  you  to  permit  these  policy  shops 
to  continue  in  their  business  in  violation  of  law?     A.   Yes,  sir. 


5o8 


American   Government  and   Politics 


'I  he  pay- 
ments made 
in  bills. 


Violations 
of  the  law. 


The  liquor 
dealers  and 
Tammany. 


Q.  This  you  know,  that  you  gave  to  Williams  every  month  a 
part  of  the  identical  money  that  was  contributed  by  these  poHcy 
shops  and  Hquor  dealers?     A.    Yes,  sir. 

Q.   You  didn't  change  the  money?     A.   Yes,  sir. 

Q.  Was  it  an  understood  thing  in  the  department  that  the 
money  should  go  in  bills  wherever  money  was  to  be  paid  in  the 
manner  that  you  have  prescribed?     A.    Oh,  yes. 

Q.   In  bills?    A.   Yes. 

Q.   So  as  to  leave  no  trace?    A.   Yes,  sir. 

Q.  Speaking  of  the  Bohemian  liquor  dealers,  is  it  a  fact  that 
the  money  they  paid  was  paid  in  consideration  of  their  being 
allowed  to  sell  on  Sundays?     A.   Yes,  sir. 

Q.  When  you  went  to  Eighty-eighth  Street,  what  collections 
were  made  in  that  precinct?  A.  There  was  some  policy  shops 
there  and  some  pool-rooms;    that  was  all. 

Q.  How  much  did  they  pay?  A.  Well,  altogether  about 
$900  a  month ;    about  $800  a  month. 

Q.  Could  you  give  us  the  number  of  policy  shops,  because  we 
want  to  be  as  exact  as  we  can ;  can  you  give  us  the  number  of  policy 
shops  and  the  number  of  pool-rooms  that  were  in  that  precinct? 
A.  I  think  there  were  about  10  policy  shops  and  three  pool- 
rooms. 

Q.  Can  you  tell  us  how  much  these  pool-rooms  pay?  A.  Two 
hundred  dollars  a  month. 

Q.   How  about  the  liquor  dealers?    A.   Didn't  touch  them. 

Q.  Was  it  not  an  understood  thing  then  that  the  liquor  dealers 
had  made  their  peace  with  the  police  through  Tammany  Hall? 
A.   Yes,  sir. 

Q.  And  that  instead  of  paying  chrectly  to  the  police  they 
should  pay  Tammany  Hall;  was  not  that  the  understood  thing? 
A .  Well,  that  was  the  understood  —  I  don't  know  whether  that 
was  really  so  or  not,  that  is  what  I  heard. 

Q.  That  is  your  reason  for  your  non-interference?  A.  Yes, 
sir. 


CHAPTER  XXVII 

THE   ORGANIZATION   OF   MUNICIPAL   GOVERNMENT 

198.   Home  Rule  for  Cities 

The  constant  interference  of  the  state  legislature  in  municipal 
affairs  has  been  accompanied  by  many  palpable  evils  and  has  led 
to  a  demand  on  the  part  of  some  reformers  for  "  municipal  home 
rule"  —  a  condition  more  easily  advocated  in  the  abstract  than 
defined  in  the  concrete.  In  the  last  constitutional  convention  of 
New  York  Mr.  Root  made  an  argument  against  allow^ing  cities 
too  great  an  independence  from  central  control :  — 

I  entered  the  chamber  while  that  gentleman  was  referring  to   Cities  and 
the  free  cities  of  the  middle  ages,  and  I  listened  with  great  interest   sQ^^-j^i^and 
and  satisfaction  to  the  remarks  which  he  made  upon  that  subject   economic 
and  those  which  followed.  .  .  .     But,  sir,  let  me  ask  the  gentle-   ""'^^' 
man  if,  filled  with  natural  and  proper  pride  in  the  great  city  which 
he  represents,  he  has  not  taken  a  somewhat  one-sided  view  of  the 
relations  of  municipalities  of  the  State  to  the  State?     The  free 
cities  of  the  middle  ages  stood  by  themselves,  governed  by  them- 
selves, but  they  undertook  to  exercise  no  power  of  governmental 
rights  over  others,  and  acknowledged  no  duties  to  others.     The 
great  cities  of  the  State  of  New  York  can  build  no  walls  around 
their  borders.     They  seclude  themselves  in  the  midst  of  no  bar- 
riers between  themselves  and  their  fellow-citizens  of  the  State. 
They  undertake  to  furnish  to  us,  and  acknowledge  their  obligations 
under  the  law  to  all  of  us  from  Montauk  to  the  State  line  in  Lake 
Erie,  the  great  market,  the  great  centre  of  education,  of  recrea- 
tion, of  business,  the  centre  commercially,  financially,  politically, 
around  which  revolve,  and  from  which  throb  and  pulse  the  Hfe 
currents  of  a  State  which  is  a  political,  social,  commercial  and 
financial  unit. 

509 


510  American   Government  and    Politics 

Cities  and  Now,  sir,  the  city  which  the  gentleman  represents  undertakes 

national  ^^  ^^^^  votes  which  will  determine  who  shall  be  the  presidential 

politics.  electors  of  the  State  of  New  York,  to  cast  votes  which  shall  deter- 

mine who  shall  be  the  Governor  of  the  State  of  New  York,  to  send 
representatives  to  the  Senate  and  Assembly,  whose  votes  will 
outweigh  those  of  any  less  number  from  any  other  part  of  the 
State  of  New  York,  in  determining  the  policy  and  the  law  for  the 
whole  State.  That  city  cannot  cut  herself  off  from  the  rest  of 
the  State.  That  city  cannot  put  herself  in  the  position  of  a  free 
city  of  the  middle  ages  with  a  wall  around  her,  governing  herself 
exclusively;  or  if  she  does,  she  secedes  from  the  State  and  be- 
comes a  city  by  herself.  And  against  that  or  any  amendment 
or  law  which  provides  for  that,  I  rise  now  to  protest.  No,  sir. 
The  cities  of  the  State,  while  properly  claiming  that  they  should 
be  exempted  from  undue  interference  with  their  private  affairs, 
nevertheless  must  admit  the  right  of  the  people  of  a  State  to  which 
they  belong  and  to  which  they  owe  allegiance,  equally  with  the 
smallest  hamlet,  to  see  that  the  great  bureau  of  police  in  which 
every  citizen  is  interested,  that  the  exercise  of  the  elective  fran- 
chise in  which  every  citizen  is  interested  remain  under  the  dom- 
ination of  the  law  of  the  State.  One  is  correlative  to  the  other. 
The  two  must  go  hand  in  hand,  and  I  understand,  sir,  that  the 
attempt  of  this  committee  has  been  to  put  into  the  measure  which 
they  have  reported,  on  the  one  hand,  a  just  exemption  from  undue 
interference  in  purely  private  and  local  matters  in  the  city,  and 
on  the  other  hand,  the  assertion  and  the  protection  of  the  higher 
right  of  the  people  of  the  great  State  of  New  York  to  preserve  her 
autonomy,  her  political  independence,  her  political  unity  and  the 
rights  of  all  her  people  by  control  over  those  governmental  func- 
tions in  the  city,  which  are  the  proper  province  of  the  general 
government.  .  .  . 

199.   Popular  Charter  Drafting 

California,  in  common  with  some  other  states,  has  attempted 
to  solve  the  vexed  question  of  municipal  home  rule  by  establish- 


The   Organization   of  Municipal   Government     511 

ing  in  the  constitution  of  the  state  these  provisions  authorizing 
cities  which  have  over  a  certain  population  to  formulate  their 
own  system  of  government :  — 

Sec.  8.  Any  city  containing  a  population  of  more  than  three  How  the 
thousand  five  hundred  inhabitants  may  frame  a  charter  for  its  own  drafted, 
government,  consistent  with  and  subject  to  the  Constitution  [or 
rc-frame  a  charter],  by  causing  a  board  of  fifteen  freeholders,  who 
shall  have  been  for  at  least  five  years  qualified  electors  thereof,  to 
be  elected  by  the  qualified  voters  of  the  said  city,  at  any  general  or 
special  election,  whose  duty  it  shall  be,  within  ninety  days  after  such 
election,  to  prepare  and  propose  a  charter  for  such  city,  which 
shall  be  signed  in  duplicate  by  the  members  of  such  board,  or  a 
majority  of  them,  and  returned,  one  copy  to  the  Mayor  thereof,  or 
other  chief  executive  officer  of  such  city,  and  the  other  to  the 
Recorder  of  the  county. 

Such  proposed  charter  shall  then  be  published  in  two  daily  news-   Publication 

.  ,     .        ,      .        .  ,       .         .  ,  ,  and  ratili- 

papers  of  general  circulation  in  such  city,  for  at  least  twenty  days  cation, 
and  the  first  publication  shall  be  made  within  twenty  days  after  the 
completion  of  the  charter;  provided,  that  in  cities  containing  a 
population  of  not  more  than  ten  thousand  inhabitants  such  pro- 
posed charter  shall  be  published  in  one  such  daily  newspaper; 
and  within  not  less  than  thirty  days  after  such  publication  it  shall 
be  submitted  to  the  qualified  electors  of  said  city  at  a  general  or 
special  election  and  if  a  majority  of  such  qualified  electors  voting 
thereon  shall  ratify  the  same,  it  shall  thereafter  be  submitted  to  the 
Legislature  for  its  approval  or  rejection  as  a  whole,  without  power 
of  alteration  or  amendment.  Such  approval  may  be  made  by  con- 
current resolution,  and  if  approved  by  a  majority  vote  of  the  mem- 
bers elected  to  each  house  it  shall  become  the  charter  of  such  city, 
or  if  such  city  be  consolidated  with  a  county,  then  of  such  city  and 
county,  and  shall  become  the  organic  law  thereof,  and  supersede 
any  existing  charter,  ...  all  amendments  thereof,  and  all  laws  in- 
consistent with  such  charter.  A  copy  of  such  charter,  certified  by 
the  Mayor  or  chief  executive  officer,  and  authenticated  by  the  seal 
of  such  city,  setting  forth  the  submission  of  such  charter  to  the 


512 


American  Government  and   Politics 


electors,  and  its  ratification  by  them,  shall,  after  the  approval  of 
such  charter  by  the  Legislature,  be  made  in  duplicate,  and  de- 
posited, one  in  the  office  of  the  Secretary  of  State,  and  the  other, 
after  being  recorded  in  said  Recorder's  office,  shall  be  deposited 
in  the  archives  of  the  city,  and  thereafter  all  courts  shall  take 
judicial  notice  of  said  charter. 

The  charter,  so  ratified,  may  be  amended,  at  intervals  of  not  less 
than  two  years,  by  proposals  therefor,  submitted  by  the  legislative 
authority  of  the  city  to  the  qualified  electors  thereof,  at  a  general  or 
special  election,  held  at  least  forty  days  after  the  publication  of 
such  proposals  for  twenty  days  in  a  daily  newspaper  of  general 
circulation  in  such  city,  and  ratified  by  a  majority  of  the  electors 
voting  thereon,  and  approved  by  the  Legislature  as  herein  provided 
for  the  approval  of  the  charter.  Whenever  fifteen  per  cent,  of  the 
qualified  voters  of  the  city  shall  petition  the  legislative  authority 
thereof  to  submit  any  proposed  amendment  or  amendments  to 
said  charter  to  the  qualified  voters  thereof  for  approval,  the  legisla- 
tive authority  thereof  must  submit  the  same.  Li  submitting  any 
such  charter,  or  amendments  thereto,  any  alternative  article  or 
proposition  may  be  presented  for  the  choice  of  the  voters,  and  may 
be  voted  on  separately  without  prejudice  to  others. 


200.    The  New  York  Check  on  the  Legislature 

New  York  has  sought  to  find  the  middle  ground  between  local 
autonomy  and  state  centralization  by  the  following  constitutional 
provision :  — 

All  cities  are  classified  according  to  the  latest  state  enumeration, 
as  from  time  to  time  made,  as  follows :  The  first  class  includes  all 
cities  having  a  population  of  one  hundred  and  seventy-five  thousand 
or  more;  the  second  class,  all  cities  having  a  population  of  fifty 
thousand  and  less  than  one  hundred  and  seventy-five  thousand; 
the  third  class,  all  other  cities. 

Laws  relating  to  the  property,  affairs  of  government  of  cities, 
and  the  several  departments  thereof,  are  divided  into  general  and 


bills 


The  Organization  of  Municipal   Government     513 

special  city  laws ;  general  city  laws  are  those  which  relate  to  all  the  . 
cities  of  one  or  more  classes;  special  city  laws  are  those  which 
relate  to  a  single  city,  or  to  less  than  all  the  cities  of  a  class.  Special 
city  laws  shall  not  be  passed  except  in  conformity  with  the  pro- 
visions of  this  section.  After  any  bill  for  a  special  city  law,  relating 
to  a  city,  has  been  passed  by  both  branches  of  the  Legislature,  the 
house  in  which  it  originated  shall  immediately  transmit  a  certified 
copy  thereof  to  the  mayor  of  such  city,  and  within  fifteen  days  there- 
after the  mayor  shall  return  such  bill  to  the  house  from  which  it 
was  sent,  or  if  the  session  of  the  Legislature  at  which  such  bill  was 
passed  has  terminated,  to  the  Governor,  with  the  mayor's  certificate 
thereon,  stating  whether  the  city  has  or  has  not  accepted  the 
same. 

In  every  city  of  the  first  class,  the  mayor,  and  in  every  other  city,  P"bHc 
the  mayor  and  the  legislative  body  thereof  concurrently,  shall  act  action  on 
for  such  city  as  to  such  bill ;  but  the  Legislature  may  provide  for 
the  concurrence  of  the  legislative  body  in  cities  of  the  first  class. 
The  Legislature  shall  provide  for  a  public  notice  and  opportunity 
for  a  public  hearing  concerning  any  such  bill  in  every  city  to  which 
it  relates,  before  action  thereon.  Such  a  bill,  if  it  relates  to  more 
than  one  city,  shall  be  transmitted  to  the  mayor  of  each  city  to 
which  it  relates,  and  shall  not  be  deemed  accepted  unless  accepted 
as  herein  provided,  by  every  such  city.  Whenever  any  such  bill  is 
accepted  as  herein  provided,  it  shall  be  subject  as  are  other  bills, 
to  the  action  of  the  Governor.  Whenever,  during  the  session  at 
which  it  was  passed,  any  such  bill  is  returned  without  the  accept- 
ance of  the  city  or  cities  to  which  it  relates,  or  within  such  fifteen 
days  is  not  returned,  it  may  nevertheless  again  be  passed  by  both 
branches  of  the  legislature,  and  it  shall  then  be  subject  as  are  other 
bills,  to  the  action  of  the  Governor.  In  every  special  city  law 
which  has  been  accepted  by  the  city  or  cities  to  which  it  relates,  the 
title  shall  be  followed  by  the  words  "accepted  by  the  city,"  or 
"cities,"  as  the  case  may  be;  in  every  such  law  which  is  passed 
without  such  acceptance,  by  the  words  "passed  without  the  ac- 
ceptance of  the  city,"  or  "cities,"  as  the  case  may  be. 
2  L 


5H 


American   Government  and   Politics 


Ovei- 

legislation. 


Larger 
powers  to 
localities. 

Absence  of 
full  informa- 
tion on  city 
administra- 
tion. 


20I.    The  Leading  Difficulties  in  City  Government 

A  committee  appointed  by  the  New  York  legislature  in  1890 
to  investigate  the  conditions  and  problems  of  modern  city  govern- 
ment came  to  the  conclusion  that  the  following  were  the  chief 
difficulties  underlying  the  question  of  city  government  in  that 
state :  — 

Our  investigations  result  in  the  conclusions  that  the  chief  diffi- 
culties which  underlie  the  government  of  cities  in  this  State  are 
fourfold. 

First.  Overlegislation  and  too  frequent  yielding  on  the  part 
of  the  Legislature  to  the  importunities  of  representatives  of  the 
various  cities  for  the  passage  of  special  or  local  bills.  In  our  opin- 
ion the  Constitution  should  be  amended  so  as  to  protect  cities 
against  the  power  of  individuals  to  appeal  to  the  Legislature,  and 
to  protect  the  Legislature  from  the  necessity  of  entertaining  such 
appeals  by  restricting  its  power  to  legislation  by  general  laws. 

Second.  The  absence  of  a  general  law  for  the  government  of  all 
cities  in  the  State,  whereby  larger  powers  should  be  granted  to  local 
authorities  and  the  Legislature  correspondingly  relieved. 

Third.  The  absence  of  a  complete  and  accurate  information 
relative  to  municipal  administration,  and  as  incident  to  this,  the 
necessity  for  the  enactment  of  a  law  which  shall  require  a  series  of 
systematic  annual  reports  to  be  filed  by  each  municipality  with 
some  proper  State  officer,  setting  out  with  sufficient  fulness  and 
detail  the  classes  of  administrative  and  financial  facts  which  we 
refer  to  hereafter,  in  order  that  the  Legislature  and  the  people  may 
be  enabled  to  advise  themselves  fully,  and  at  all  times,  with  regard 
to  the  general  condition  of  the  government  of  cities,  so  far  as  the 
same  can  be  made  apparent  by  means  of  an  accurate  and  syste- 
matic publication  of  reports  showing  the  indebtedness,  taxation 
and  expenditure  of  such  cities. 

Fourth.  The  subordination  of  city  business  to  the  exigencies 
of  State  and  national  politics.  .  .  . 

Under  the  existing  system,  stability  of  city  government  is  a 


The   Organization  of  Municipal   Government     515 

practical  impossibility.  The  officers  of  our  municipalities  find  it  Constant 
impossible  to  determine  upon  any  general  policy  whatever  looking  of  laws 
towards  better  administration  with  the  expectation  that  any  such  relating 
policy  can  ever  be  carried  out  to  its  proper  and  logical  conclusion. 
This  is  due  not  only  to  the  continued  possibility  of  legislative  in- 
terference, but  because  of  the  pertinacity  with  which  interested 
parties  or  local  authorities  appeal  to  the  Legislature  year  after 
year  in  matters  affecting  city  government  —  from  the  most  im- 
portant to  the  most  insignificant  —  thus  depriving  the  cities  of 
their  administrative  autonomy,  and  subjecting  them  to  conditions 
which  do  not  prevail  in  the  administration  of  the  business  of  any 
other  corporation  whatever.  For  this  the  people  are  themselves 
very  largely  to  blame,  because  of  their  indifference  to  the  policy  of 
their  local  authorities  and  their  failure  to  protect  both  themselves 
and  the  Legislature  by  a  knowledge  and  disclosure  of  the  facts. 
These  are  conditions  which,  if  applied  to  the  business  of  any  other 
corporation,  would  make  the  maintenance  of  a  continued  policy 
and  a  successful  administration  as  impossible  as  they  are  to-day  in 
the  government  of  our  municipalities,  and  produce  waste  and  mis- 
management such  as  is  now  the  distinguishing  feature  of  munici- 
pal business  as  compared  with  that  of  private  corporations.  The 
situation  then  is  as  follows :  — 

That  it  is  frequently  impossible  for   the  Legislature,  the  mu-   Confusion 
nicipal  officers,  or  even  for  the  courts  to  tell  what  the  laws  mean,   certainty  ir 
That  it  is  usually  impossible  for  the  Legislature  to  tell  what  the   the  laws, 
probable  effect  of  any  alleged  reform  in  the  laws  is  likely  to  be. 
That  it  is  impossible  for  anyone,  either  in  private  life  or  in  public 
office,  to  tell  what  the  exact  business  condition  of  any  city  is,  and 
that  municipal  government  is  a  mystery  even  to  the  experienced. 
That  municipal  officers  have  no  certainty  as  to  their  tenure  of  office. 
That  municipal  officers  can  escape  responsibility  for  their  acts  or 
failures  by  securing  amendments  to  the  law.     That  municipal 
officers  can  escape  real  responsibility  to  the  public  because  of  the 
unintelligibility  of  the  laws,  and  the  insufficient  publicity  of  the 
facts   relative  to  municipal  government.     That   local   authorities 


5i6 


American   Government  and   Politics 


receive  permission  to  increase  the  municipal  debt  for  the  per- 
formance of  public  works  which  should  be  paid  out  of  taxes. 
That  the  conflict  of  authority  is  somedmes  so  great  as  to  result  in  a 
complete  or  partial  paralysis  of  the  service.  That  our  cities  have 
no  real  local  autonomy.  That  local  self-government  is  a  mis- 
nomer; and  that  consequently  so  little  interest  is  felt  in  matters 
of  local  business  that  in  almost  every  city  in  the  state  it  has  fallen 
into  the  hands  of  professional  politicians.  .  .  . 

We  have  found  great  difficulty  in  arriving  at  the  facts  concerning 
what,  on  its  face,  should  appear  under  any  circumstances  to  be  a 
simple  matter  and  one  easy  of  discovery,  namely,  the  exact  cost  per 
annum  of  the  government  of  each  of  the  cities ;  the  extent  to  which 
each  of  the  cities  has  used  its  credit;  the  extent  to  which  it  uses  its 
taxing  power;  the  amount  of  the  expenditure  from  moneys  de- 
rived from  loans;  the  amount  of  the  expenditure  from  moneys 
derived  from  taxation ;  the  existence  or  non-existence  of  a  sinking 
fund ;  the  operations  of  the  sinking  fund ;  the  kinds  and  classes  of 
taxes  or  licenses  or  other  sources  of  revenue  to  the  city ;  the  rights, 
franchises  and  property  of  the  city;  the  amount  of  indebtedness  of 
the  city,  permanent  or  floating,  and  the  extent  to  which  the  credit 
of  the  city  is  used  for  temporary  purposes  in  anticipation  of  the 
collection  of  taxes  or  other  revenues. 

The  entire  expenditure  of  this  State  for  State  purposes  is  only 
about  one-fifth  the  expenditure  from  the  taxation  sum  spent  by  city 
governments  for  purposes  of  local  administration.  Although  the 
expenditure  of  municipalities  for  the  purpose  of  government 
vastly  exceeds  the  expenditure  of  the  State,  the  actual  cost  of  per- 
forming the  several  municipal  services,  and  the  condition  of  mu- 
nicipal finance  generally,  are  pracdcally  unknown  and  extremely 
difficult  for  the  Legislature  or  the  people  to  discover. 

The  system  of  accounting  in  the  several  cities  is  more  unintelli- 
gible and  chaotic  even  than  the  laws  under  which  the  cities  them- 
selves are  administered.  The  chaos  in  the  accounts  may  be,  and 
in  our  opinion  must  be,  credited  in  the  first  instance  to  the  chaos  in 
the  laws.     How  and  why  this  is  will  be  shown  more  fully  in  the 


The  Organization  of  Municipal   Government     517 

detailed  consideration  of  the  reports  of  the  several  cities  on  their 
financial  administration.  We  beheve  that  there  can  be  no  wise 
legislation  with  reference  to  the  government  of  cities,  unless  it  be 
possible  for  the  officers  of  this  State  —  and  especially  for  the 
Legislature  and  the  Governor  —  to  be  able  at  all  times  to  know 
with  definiteness  and  certainty  the  facts  relative  to  the  general 
condition  of  municipal  administration  in  each  of  the  cities  and 
more  particularly  to  the  exact  financial  situation  of  each  and  all  of 
them. 

202.   Decentralized  Municipal  Administration 

This  extract  from  the  address  of  Mayor  Hart  to  the  Boston 
Municipal  Council  in  1891  describes  the  system  of  city  administra- 
tion commonly  adopted  when  cities  first  began  their  remarkable 
growth  in  America.  It  has  been  by  no  means  entirely  abandoned 
to-day,  but  it  is  giving  way  everywhere  before  the  demand  for  a 
more  centralized  and  responsible  form  of  government. 

I  renew  my  recommendation  for  the  consohdation  of  certain   Diffusion  of 

cxGcutivc 

Executive  Departments  for  the  benefit  of  the  public  and  the  public 
service.  The  number  of  sef)arate  Departments  directly  con- 
trolled by  the  Mayor  of  the  City  is  thirty-nine,  with  ninety-two 
separate  heads,  not  including  more  than  a  Inmdred  sub-heads  or 
assistants  subject  to  the  Mayor's  confirmation,  and  excluding, 
also,  more  than  twenty-five  hundred  Executive  appointments, 
made  annually  subject  to  confirmation  in  the  Board  of  Aldermen. 
If  the  Mayor  wishes  to  make  his  appointments  from  actual  knowl- 
edge, sufficient  time  will  not  be  left  for  administrative  work  and 
for  the  necessary  inspection  of  the  thirty-nine  separate  Depart- 
ments under  his  control,  not  to  mention  the  half-dozen  independent 
Departments  and  special  boards  subject  only  to  his  general  super- 
vision. If  the  Mayor  cannot  readily  keep  familiar  with  the  De- 
partments, how  can  the  plain  citizen  who  comes  to  City  Hall  to 
transact  business?  The  President  of  the  United  States  has  eight 
Cabinet  officers,  the  INfayor  of  Boston  has  ninety-two. 
We  need  a  Board  of  Public  Works  forthwith,  and  other  con- 


power. 


5i8 


American   Government  and   Politics 


Divided  re- 
sponsibility 
in  com- 
missions. 


Heads  of 
departments 
should  be 
appointed. 


Annual 

elections 

condemned. 


solidations  in  time.  There  is  no  valid  reason  why  the  five  Ferry 
Commissioners,  established  by  Ordinance,  should  not  be  replaced 
by  one  Superintendent,  to  be  appointed  by  the  Mayor  subject  to 
confirmation  in  the  Board  of  Aldermen.  Mt.  Hope  Cemetery 
should  be  placed  under  similar  control.  I  think  one  Record  Com- 
missioner sufficient.  The  Fire  Department,  the  Law  Depart- 
ment, the  Park  Department,  the  Public  Institutions,  and  the  entire 
Water  Department  should  have  one  w^U-paid  head  each,  three- 
headed  commissions  tending  to  divide  responsibility,  and  to  give  a 
less  energetic  and  harmonious-  service  than  the  public  requires. 
The  office  of  Fire  Marshal,  established  by  the  Commonwealth, 
should  be  abolished,  and  its  duties  transferred  to  the  Fire  Depart- 
ment. In  the  Records,  Fire,  and  Law  Departments  the  simpli- 
fication can  be  established  by  Ordinance.  Constables  should  be 
appointed  l^y  the  Board  of  Police.  All  weighers  and  measurers 
should  be  attached  to  the  Department  of  Weights  and  Measures. 

Heads  of  Departments  should  be  appointed  during  good  be- 
havicjr,  and  all  subordinates,  save  in  a  few  cases,  should  come  under 
the  civil-service  regulations  of  the  Commonwealth,  partly  to  abol- 
ish favoritism,  that  curse  of  government,  partly  to  save  time  usu- 
ally wasted  when  places  in  the  public  service  are  filled  upon  the 
request  of  interested  persons.  Officers  appointed  by  the  IMayor 
and  confirmed  by  the  Board  of  Aldermen,  unless  in  charge  of  a 
Department  established  by  Ordinance,  should  be  appointed  for 
one  year  only.  At  present  Constables,  Weighers  of  Coal,  and 
other  minor  officers  serve  until  removed,  or  until  others  are  ap- 
pointed in  their  respective  places. 

I  think  our  present  system  of  annually  electing  the  entire  City 
Government  little  less  than  barbarous.  There  is  no  sound  reason 
why  Mayors  should  not  be  elected  for  terms  of  two  or  three  years, 
and  why  the  members  of  the  City  Council  should  not  be  chosen  for 
like  terms,  one-half  or  one-third  to  be  voted  for  annually.  In  that 
way  the  City  Council  would  become  a  perpetual  body,  and  the 
annual  elections  would  no  longer  give  so  imfortunate  a  shock  to 
the  public  service  and  the  interests  of  the  City.     Annual  elections 


The   Organization   of  Municipal   Government      519 

as  now  held  are  neither  instructive  nor  useful.  Longer  terms  of 
elective  officers  are  conservative  and  will  place  upon  voters  a 
greater  duty. 

203.    The  Mayor^s  Power  in  New  York  City 

These  sections  of  the  New  York  charter,  giving  some  of  the  prin- 
cipal powers  conferred  on  the  mayor,  illustrate  a  leading  tendency 
in  American  city  government  and  show  how  that  great  metropolis 
has  sought  to  concentrate  authority  and  fix  responsibility:  — 

The  executive  power  of  The  City  of  New  York,  as  constituted  The  ex- 

ccutivc 

by  this  act,  shall  be  vested  in  the  mayor,  the  presidents  of  the  sev-  po^e^  of 
eral  boroughs  and  the  officers  of  the  several  departments.  The  the  city, 
mayor  shall  be  the  chief  executive  officer  of  the  city;  he  shall  be 
elected  at  the  general  election  in  the  year  nineteen  hundred  and 
five,  and  every  four  years  thereafter,  and  shall  hold  his  office  for 
the  term  of  four  years  commencing  on  the  first  day  of  January  after 
his  election.  The  salary  of  the  mayor  shall  be  fifteen  thousand 
dollars  a  year.  .  .  . 

The  mayor  may,  whenever  in  his  judgment  the  public  interests  ^^^  mayor's 
shall  so  require,  remove  from  office  any  public  officer  holding  office  power, 
by  appointment  from  a  mayor  of  the  City  of  New  York,  except 
members  of  the  board  of  education,  and  aqueduct  commissioners, 
trustees  of  the  College  of  the  City  of  New  York,  and  trustees  of 
Bellevue  and  allied  hospitals,  and  except  also  judicial  officers  for 
whose  removal  other  provision  is  made  by  the  constitution.  No 
public  officer  shall  hold  his  office  for  any  specific  term,  except  as  in 
this  act  is  otherwise  expressly  provided.  .  .  . 

It  shall  be  the  duty  of  the  mayor :  The  mayor's 

1.  To  communicate  to  the  board  of  aldermen,  at  least  once  in 
each  year,  a  general  statement  of  the  finances,  government,  and  im- 
provements of  the  city. 

2.  To  recommend  to  the  board  of  aldermen  all  such  measures 
as  he  shall  deem  expedient. 

3.  To  keep  himself  informed  of  the  doings  of  the  several  depart- 
ments. 


520 


American   Government  and   Politics 


The  mayor's 

appointing 

power. 


The  com- 
missioners of 
accounts. 


4.  To  be  vigilant  and  active  in  causing  the  ordinances  of  the 
city,  and  laws  of  the  state  to  be  executed  and  enforced,  and  for 
that  purpose  he  may  call  together  for  consultation  and  co-operation 
any  or  all  of  the  heads  of  departments. 

5.  And  generally  to  perform  all  such  duties  as  may  be  pre- 
scribed for  him  by  this  act,  the  city  ordinances  and  the  laws  of 
the  state.  ... 

The  mayor  shall  appoint  the  heads  of  departments  and  all  com- 
missioners, except  as  otherwise  provided  in  this  act.  He  shall 
also  appoint  all  members  of  any  board  or  commission  authorized 
to  superintend  the  erection  or  repair  of  any  building  belonging  to 
or  to  be  paid  for  by  the  city,  whether  named  in  any  law  or  appointed 
by  any  local  authority,  and  also  a  commissioner  of  jurors  for  the 
boroughs  of  Manhattan  and  the  Bronx,  inspectors  of  weights  and 
measures,  and  as  many  sealers  of  weights  and  measures  as  may 
by  ordinance  be  prescribed,  and  also  the  members  of  any  other 
local  board  and  all  officers  not  elected  by  the  people,  whose  ap- 
pointment is  not  excepted  or  otherwise  provided  for.  Every  head 
of  department  and  person  in  this  section  named  shall,  subject  to 
the  power  of  removal  herein  provided,  hold  his  office  for  such 
term  as  is  provided  by  this  act,  or  otherwise,  and  in  each  case  until 
a  person  is  duly  appointed,  and  has  qualified,  in  his  place. 

The  mayor  shall  appoint  and  remove  at  pleasure  two  persons 
who  shall  be  commissioners  of  accounts,  one  of  whom  shall  be  a 
certified  public  accountant.  It  shall  be  their  duty,  once  in  three 
months,  to  make  an  examination  of  the  receipts  and  disbursements 
in  the  offices  of  the  comptroller  and  chamberlain,  in  connection 
with  those  of  all  the  departments  and  officers  rriaking  returns 
thereto,  and  report  to  the  mayor  a  detailed  and  classified  state- 
ment of  the  financial  condition  of  the  city  as  shown  by  such  ex- 
aminations. They  shall  also  make  such  special  examinations  of 
the  accounts  and  methods  of  the  departments  and  offices  of  the 
city  and  of  the  counties  of  New  York,  Richmond,  Queens  and 
Kings,  as  the  mayor  from  time  to  time  may  dii ect,  and  such  other 
examinations  as  the  said  commissioners  may  deem  for  the  best 


The  Organization  of  Municipal   Government     521 

interests  of  the  city,  and  report  to  the  mayor  and  the  board  of 
aldermen  the  results  thereof.  For  the  purpose  of  ascertaining 
facts  in  connection  with  these  examinations  they  shall  have  full 
power  to  compel  the  attendance  of  witnesses,  to  administer  oaths, 
and  to  examine  such  persons  as  they  may  deem  necessary.  Such 
commissioners  shall  each  be  paid  the  sum  of  five  thousand  dollars 
a  year.  The  board  of  estimate  and  apportionment  and  the  board 
of  aldermen  shall  annually  appropriate  a  sum  sufficient  to  pay  the 
salaries  of  said  commissioners,  and  in  the  discretion  of  said  board 
and  the  board  of  aldermen  a  sum  sufficient  to  enable  them  to 
employ  the  necessary  assistance  to  carry  out  the  provisions  of 
this  section. 

The  mayor  may  be  removed  from  office  by  the  governor  in  the   The  removal 
same  manner  as  sheriffs,  except  that  the  governor  may  direct  the   mayor 
inquiry  provided  by  law  to  be  conducted  by  the  attorney-general ; 
and  after  the  charges  have  been  received  by  the  governor,  he  may, 
pending  the  investigation,  suspend  the  mayor  for  a  period  not 
exceeding  thirty  days. 


204.    The  Council  and  Municipal  Administration  * 

In  January,  1909,  the  Boston  Finance  Commission,  charged 
with  the  investigation  of  the  conditions  of  government  in  that 
city,  made  a  special  report  to  the  mayor  and  city  council  from 
which  a  few  passages  are  given  here :  — 

The  possession  of  concurrent  power  over  appropriations  and  Membership 
loans   aggregating  $25,000,000   a  year   and   over   the   municipal  council  a^ 
ordinances  for  a   population    of   600,000  people  would  seem  to  discredit, 
furnish  sufficient  honor  to  make  a  seat  in  the  city  council  an  object 
of  legitimate  ambition,  and  to  cause  whatever  sacrifice  of  time 
may  be  involved  to  be  looked  upon  as  a  civic  duty.     Member- 
ship in  the  city  council,  however,  is  quite  generally  regarded  as  a 
discredit  rather  than  an  honor;   and  it  is  difficult  to  induce  rep- 
resentative men  to  become  candidates  for  either  branch. 

The  reason  is  not  that  the  work  and  responsibilities  of  the  city 


522 


American  Government  and  Politics 


council  were  so  diminished  by  the  charter  of  1885  as  to  destroy  its 
importance.  The  prohibition  of  interference  with  the  letting  of 
contracts,  the  employment  of  labor  and  the  other  details  of  ad- 
ministration, was  intended  as  much  for  the  relief  of  honest  members 
of  the  city  council  as  for  protection  against  dishonest  ones.  It  is 
only  through  this  withdrawal  of  executive  functions  that  member- 
ship in  the  city  council  is  possible  for  busy  men.  The  reasons  for 
the  disrepute  into  which  the  city  council  has  fallen  and  for  the 
consequent  disinclination  of  competent  and  representative  citizens 
to  serve  in  it,  are  to  be  found  in  the  conduct  of  that  body  and  its 
members. 

The  city  council  as  a  body  gives  no  serious  consideration  to  its 
duties.  In  1907  twenty-eight  of  the  forty-two  joint  standing  com- 
mittees had  no  papers  referred  to  them,  and  held  no  meetings. 
In  the  common  council  of  the  year  four  hundred  and  seventy  orders 
were  introduced  and  referred  to  the  mayor  without  discussion  or 
vote.  Its  work  on  the  annual  appropriations  bill  consists  gen- 
erally of  attempting  to  raise  the  mayor's  estimates  to  the  maximum 
amount  allowed  by  law,  with  a  preference  for  those  departments 
where  the  patronage  is  largest.  Loan  bills  are  log-rolled  through 
with  more  regard  for  the  demands  of  interested  constituents  and 
the  possibility  of  jobs  than  for  the  needs  of  the  city  as  a  whole. 
The  annual  borrowing  capacity  of  the  city  within  the  debt  limit 
is  treated  as  affording  so  much  more  money  to  be  spent;  and  every 
occasion  is  seized  to  petition  the  legislature  for  leave  to  borrow 
additional  millions  outside  the  debt  limit.  This  phrase,  the  "debt 
limit,"  has  lost  its  meaning,  and  each  additional  authorization  to 
borrow  in  excess  of  it  is  regarded  as  a  "gift"  of  money  by  the  state 
to  be  spent  as  soon  as  the  act  can  be  accepted.  Notwithstanding 
the  small  amount  of  legitimate  business  transacted,  weekly  meet- 
ings of  both  branches  are  held  throughout  the  year,  except  in  sum- 
mer, and  a  small  army  of  high-salaried  clerks,  stenographers,  mes- 
sengers and  assistants  is  maintained.  At  least  $50,000  a  year  is 
wasted  upon  superfluous  employees,  generally  politicians,  retained 
to  aid  the  city  council  in  the  non-discharge  of  its  duties. 


The  Organization   of  Municipal  Government     523 

Many  members  spend  their  time  in  violating  the  charter  by  Illegal 
besieging  the  heads  of  departments  to  employ  men,  raise  salaries, 
give  out  contracts,  and  order  goods  for  the  benefit  of  their  political 
supporters  and  constituents.  If  persistent  entreaties  are  insuflE- 
cient  to  cause  the  heads  of  departments  to  swerve  from  their  duty, 
recourse  is  often  had  to  scurrilous  attacks  on  the  floor  of  the  city 
council  which  are  printed  in  the  daily  papers  and  perpetuated  in 
the  official  publications  of  the  city.  These  illegal  efforts  arc  often 
directed  to  the  pecuniary  benefit  of  the  members  themselves.  In 
the  belief  that  they  could  not  contract  directly  with  the  city,  the 
practice  has  arisen  of  making  contracts  and  selling  goods  under 
assumed  names,  or  as  silent  partners  with  contractors  or  material 
men. 

Few  large  cities  in  the  country  have  a  double  legislative  body.  The 
In  1908  eleven  cities  in  this  state  had  a  single  legislative  body;  chamber 
and  the  mayors  of  all  these  cities  informed  the  commission  that  system, 
there  was  no  disposition  to  return  to  the  double  chamber  system. 
During  the  present  year  two  more  cities  have  come  under  the 
single  chamber  system.  The  chief  objections  to  the  double 
chamber  are  the  multij)licity  of  elective  officers,  the  diffusion  of 
responsibility,  and  the  fact  that  the  members  of  one  of  the  branches 
must  be  elected  by  wards  and  do  not  represent  the  city  as  a  whole. 
Moreover,  there  is  no  true  analogy  between  the  legislative  depart- 
ment of  a  city  government  and  our  state  and  national  legislatures. 
In  fact,  the  word  "legislative,"  when  applied  to  a  city  council,  is 
a  misnomer  It  is  a  convenient  expression  to  distinguish  that 
body  from  the  executive,  but  it  does  not  represent  in  any  accurate 
sense  the  functions  of  a  city  council.  These  relate  mainly  to  the 
appropriation  of  money  for  local  purposes,  and  involve  very  few 
questions  of  the  kind  passed  on  by  a  true  legislative  body.  The 
reason  for  having  two  branches  of  a  state  legislature  does  not, 
therefore,  apply  to  a  city  council.  The  relations  between  a  mayor 
and  city  council  are  analogous  to  those  which  exist  in  private  cor- 
[  orations  between  the  president  and  the  board  of  directors. 

The  sole  advantage  to  be  found  in  the  double  chamber  system 


524 


American   Government  and  Politics 


The  advan- 
tage of  two 
chambers. 


The  mayor 
as  a  check  on 
the  council. 


Reduce  the 
number  of 
councilors. 


is  that  the  mistakes  of  one  body  may  be  corrected  by  the  other. 
Not  infrequently  in  the  history  of  our  city  government  an  unwise 
exercise  of  the  borrowing  power  by  one  branch  has  been  negatived 
by  the  other;  but  much  more  frequently  improvident  loans  de- 
sired by  one  branch  have  been  added  to  the  similar  loans  favored 
by  the  other,  incorporated  in  a  single  bill,  and  passed.  In  fact, 
this  has  become  the  common  way  in  which  the  loan  bills  are  made 
up.  On  the  whole,  the  disadvantages  of  a  second  chamber  appear 
to  the  commission  to  far  outweigh  its  advantages. 

If  there  be  but  one  elective  council,  there  should  be  a  check 
upon  its  action  more  effective  than  the  qualified  veto  power  now 
possessed  by  the  mayor.  Such  a  check  can  be  secured  by  enlarg- 
ing the  power  of  the  mayor  over  appropriations,  loans,  franchises 
and  ordinances.  The  commission  recommends  that  the  mayor 
be  given  a  concurrent  voice  in  all  matters  passed  on  by  the  city 
council.  This  means  either  an  absolute  veto  or  the  right  of  ini- 
tiative on  his  part.  The  commission  recommends  a  combination 
of  the  two  plans.  The  annual  appropriation  bill  or  budget  should 
originate  with  the  mayor  in  legal  theory  as  it  docs  now  in  practice, 
while  all  other  acts  and  votes  of  the  city  council  should  be  subject 
to  his  approval.  Appropriations  from  revenue  and  taxes  should 
be  submitted  by  the  mayor  to  the  city  council  which  should  have 
the  power  to  eliminate  or  decrease  items  but  not  to  increase  or  add 
items.  A  similar  provision,  but  varying  in  details,  is  found  in  the 
charters  of  New  York,  Baltimore  and  Cleveland  and  is  recom- 
mended by  the  National  Municipal  League  for  general  adoption 
by  cities  of  the  country.  All  other  acts,  votes,  orders,  and  resolu- 
tions of  the  city  council  should  require  the  affirmative  approval 
of  the  mayor. 

If  the  city  council  is  to  be  elected  at  large,  the  commission  re- 
gards it  as  essential  that  its  mcmljcrship  should  l^e  small.  The 
history  of  municipal  government  in  this  country  has  demonstrated 
that  the  elective  offices  should  be  few  in  number.  By  reducing 
the  number  of  candidates  and  thereby  simplifying  the  ballot,  good 
nominations  and  intelligent  discussion  of  candidates  will  be  pos- 


The  Organization  of  Municipal    Government     525 

sible.     This  is  not  now  the  case.     The  commission  recommends 

a  city  council  of  nine  members,  elected  at  large,  three  each  year  - 

after  the  first,  for  a  term  of  three  years. 

A  permanent  body  with  powers  and  duties  similar  to  those  of  the  ^  finance 

r  .....  .  ,,..  ,  .       ,        commission. 

present  finance  commission  is  a  vital  necessity.     Without  it  the 

people  have  no  impartial  means  of  accurate  information  as  to  the 
manner  in  which  the  mayor,  the  city  council,  and  the  heads  of 
departments  are  conducting  the  business  of  the  city.  The  igno- 
rance of  the  voters  upon  these  subjects  has  been  a  great  hindrance 
to  good  government  in  this  city.  Adequate  means  of  enlighten- 
ment through  investigation  and  publicity  cannot  be  secured  through 
the  efforts  of  volunteers;  though  these  may  be  of  great  value.  An 
official  board  of  information,  acting  diligently,  fairly,  and  continu- 
ously, is  required.  The  commission,  therefore,  recommends  the 
appointment  by  the  governor  of  a  board  consisting  of  five  mem- 
bers, with  authority  to  draw  against  the  city  treasury  a  sum  not 
exceeding  $25,000  per  annum  for  the  expenses  which  it  may  incur 
in  the  performance  of  its  duties. 

These  duties  should  be  to  investigate  such  departments,  methods,  Duties 

,  ,  .  .  .  ,         ,  ,  .        of  the  com- 

and  practices  as  may  from  time  to  time  be  thought  to  require  mission, 
investigation,  to  hold  public  hearings  if  necessary,  and  to  report 
from  time  to  time  either  to  the  city  government  or  to  the  legislature. 
The  commission  should  have  the  same  powers  with  respect  to  the 
summoning  of  witnesses  and  the  production  of  papers  as  were 
given  to  the  finance  commission  by  chapter  362  of  the  Acts  of 
1908.  Experts  should  be  retained  to  investigate  the  more  com- 
plicated questions  of  administration. 

The   legislative  measures  which    the   commission   regards  as  A  summary 
essential  to  enable  the  people  of  Boston  to  redeem  their  govern- 
ment may  be  summarized  as  follows: 

1.  A    simplified    ballot,    with    as    few    names     thereon     as 
possible. 

2.  The  abolition  of  party  nominations. 

3.  A  city  council  consisting  of  a  single  small  body  elected  at 
large. 


526 


American  Government  and   Politics 


4.  The   concentration   of  executive   power   and  responsibility 
in  the  mayor. 

5.  The  administration  of  the  departments  by  trained  experts, 
or  persons  with  special  qualifications  for  the  office. 

6.  Full  publicity  secured  through  a  permanent  finance  com- 
mission. 


205.   A  Plea  for  the  Rehabilitation  of  the  City  Council 

The  experience  of  American  cities  with  corrupt  and  irresponsible 
boards  of  aldermen  and  councils  has  led  to  a  drastic  reduction 
in  the  general  powers  of  the  municipal  legislature.  This  devel- 
opment has  not  been  without  protest,  however,  and  in  the  last 
New  York  constitutional  convention,  Mr.  Jenks  made  a  plea  for 
the  rehabilitation  of  the  city  council :  — 

The  difficulties  in  the  government  of  cities  are  not  far  to  seek. 
I  tell  nothing  new.  I  may  be  unconsciously  plagiarizing.  They  are 
these:  First.  There  are  so  few  direct  taxpayers.  You  may  take 
almost  anything  from  a  man  indirectly,  little  from  a  man  directly. 
The  man  who  pays  the  rent  does  not  understand  that  the  tax 
levy  bears  upon  him.  The  man  who  pays  the  direct  tax  into  the 
receiving  office  is  he  who  protests.  The  other  is  indifferent;  he 
is  the  workingman,  the  rent  payer,  who  sees  no  tax  bill  and  forgets 
that  any  burden  is  upon  him.  It  is  chiefly  on  account  of  the  few- 
ness of  the  direct  taxpayers  that  the  difficulties  in  the  government 
of  cities  exist. 

Another  difficulty  is  that  the  afifairs  of  the  city  are  not  understood 
by  the  intelligent  citizens  who  Hve  in  them.  We  have  a  complex 
system  of  city  government ;  we  have  boards  and  bureaus ;  we  have 
commissions  and  routine  of  delicate  charter  provisions  and  manipu- 
lations. No  man,  unless  he  becomes  a  student  of  his  own  munici- 
pality, burning  the  midnight  oil,  can  understand  the  system  and 
program  of  government.  Take  these  two  things,  then,  the  intri- 
cate method  of  administering  government  in  cities,  the  fewness  of 
the  people  compared  with  the  population  who  pay  direct  taxes, 
and  you  have  the  chief  bars  to  good  clean  government. 


The  Organization  of  Municipal   Government     527 

A  man  goes  about  his  business  in  despair,  and  says:  "Those  The  tax- 
fellows  in  the  city  hall  or  common  council  can  manage  it.  I  pay  hopeless, 
my  taxes.  They  are  unjust,  but  I  do  not  know  the  remedy,  nor 
where  lies  the  fault.  The  system  is  wrong,  but  who  is  the  man?" 
How  many  men  know  the  manner  in  which  their  own  city  is 
governed  ?  They  may  hear  of  the  board  of  works,  or  of  the  com- 
mon council,  but  who  can  put  his  finger  on  any  provision  of  the  city 
government  and  say  this  or  that  is  the  provision  that  should  be 
changed  or  this  or  that  is  the  provision  which  should  be  remedied 
or  amended,  or  here  is  he  who  must  account?  Now,  if  we  cannot 
have  the  town  meeting  or  the  folk  mote,  we  need  so  far  as  is  possible 
true  representative  government;  we  need  a  system  so  simple  that 
the  man  when  he  comes  to  the  voting  booth  can  know  exactly  what 
he  is  doing  and  his  full  measure  of  responsibility.  We  want  to 
have  simplicity  and  responsibility  coupled  with  unity  in  the  ad- 
ministration of  the  affairs  of  the  city ;  and  then  it  seems  to  me  we 
have  in  our  imperfect  way,  at  least,  partial  solving  of  the  prob- 
lem. .  .  . 

Then,  gentlemen,  let  the  common  council  consist  of,  say  The  city 
120  men,  in  cities  of  the  first  class,  and  in  cities  of  the  second  class 
of  seventy-five,  and  in  cities  of  the  third  and  final  class,  of  thirty. 
It  may  be  wise,  it  may  be  well,  that  in  the  great  city  of  New  York 
there  should  be  a  system  of  dual  chambers.  It  may  be  wise, 
it  may  be  well,  that  there  should  be  a  smaller  Senate-like  body, 
if  you  please,  elected  by  the  citizens  at  large,  but  the  gentleman's 
experience  and  mine  go  hand  in  hand  when  we  say  that  one  general 
ticket,  elected  by  the  whole  city,  does  not  show  such  improvement, 
in  either  ability  or  honesty  or  statesmanship,  as  to  commend  itself 
either  to  him  or  to  me. 

The  chief  election  officers  of  the  city  should  be  required  to  divide  Larger 
the  various  cities  into  districts  of  compact  territory  and  of  relative  should  be 
equality  of  population,  as  near  as  may  be,  and  from  each  district  given  to  the 
there  should  be  elected  for  a  term  equal  to  that  of  the  mayor  a 
representative  to  the  common  council.     I  believe  there  should  be 
the  divorce  of  municipal  elections  from  State  and  national  elec- 


ja8 


American  Government  and  Politics 


The  council 
and  heads 
of  depart- 
ments. 


tions.  I  believe,  sir,  that  full  power  should  be  intrusted  to  this 
common  council  by  general  laws,  not  even  such  emasculated  powers 
as  are  given  in  this  proposed  article,  but  it  should  be  intrusted  with 
every  power  of  local  government  and  with  every  governmental 
power  committed  to  the  city  by  the  State.  That  is,  I  believe  it 
should  have  the  power  of  fixing  the  appropriations;  I  believe  it 
should  have  the  power  of  determining  the  tax  levy;  I  believe  it 
should  have  every  power  that  may  be  vested  in  a  local  legislature. 

This,  of  course,  is  subject  to  this  criticism ;  it  may  be  said  that 
the  experience  of  the  past  has  shown  to  us  that  the  common  council 
of  cities  should  rather  be  shorn  of  their  powers.  But  is  not  this 
the  crucial  test  of  the  ability  of  the  people  of  a  city  to  govern  them- 
selves? If,  with  a  large  body  elected  from  separate  districts, 
intrusted  with  the  full  power  of  local  government,  the  cities  of  the 
State  cannot  or  do  not  elect  men  who  are  competent  to  administer 
their  affairs,  then,  I  say,  let  them  be  blotted  out  forever  and  be 
administered  by  commissions  appointed  by  the  Governor  or  Legis- 
lature. The  only  way  to  do  is  thus  to  educate  the  people.  It  was 
Disraeli  who  said  that  true  progress  was  to  educate  his  party. 
But  the  way  to  do  this  is  to  educate  the  people,  so  that  a  man  will 
understand  when  he  goes  to  his  polls  at  the  spring  elections  that 
he  has  two  men  to  vote  for  —  the  mayor,  the  chief  executive  of 
the  city,  and  the  member  of  his  local  legislature.  He  knows  when 
he  votes  for  his  member,  that  he  vdll  have  the  power  of  appropria- 
tion, the  power  of  taxation,  the  power  of  legislating  upon  all  city 
affairs,  to  say  what  bonds  of  the  city  shall  be  issued,  what  obliga- 
tions of  the  city  shall  be  issued,  what  expenditures  and  what  con- 
tracts shall  be  made.  Then  if  there  be  not  public  spirit,  and  if 
there  be  not  enthusiasm  and  patriotism  enough  in  the  inhabitants 
of  the  city  when  the  issue  is  put  fairly  and  squarely  before  them  to 
elect  such  men  as  wall  represent  them  fairly,  then  let  chaos  come 
again,  and  they  deserve  it. 

I  believe  that  the  heads  of  departments  should  be  entitled  to  seats 
on  the  floor  of  the  common  council,  but  without  the  power  to  vote. 
I  believe  that  the  heads  of  the  departments  should  not  communicate 


The  Organization  of  Municipal   Government     529 

with  the  local  legislature  by  means  of  long  letters,  which  are  pigeon- 
holed, lost  sight  of,  and  never  read.  I  believe  the  head  of  a  depart- 
ment, if  he  have  power  to  express  himself,  and  anybody  who  knows 
his  business  can  express  himself,  should  be  subject  to  question, 
interrogation,  explanation,  and  to  the  hectic  of  debate  upon  the 
very  floor  of  the  common  council.  PubUc  opinion  rules  to-day. 
Newspapers  are  our  mayors,  our  common  councils.  Give  us  in 
addition  not  simply  the  agitation  of  some  local  Demosthenes 
during  the  week  or  two  of  political  campaign,  but  through  the  year 
let  us  have  a  common  council  selected  from  a  full  body  of  the  citi- 
zens, large  enough  to  represent  all  the  different  elements  of  the  city, 
where  the  heads  of  the  departments  must  come  to  explain  why  and 
wherefore  they  want  this  appropriation  or  why  and  wherefore  they 
have  neglected  this  sewer,  or  why  and  wherefore  they  have  not  done 
this  or  that  matter  of  municipal  business,  and,  if  they  do  not  or 
cannot,  then  soon  will  the  people  gibbet  them  at  the  very  crossroads 
of  public  opinion.  .  .  . 

206.    Municipal  Government  by  Commission 

The  principal  sections  of  the  recent  Iowa  law  authorizing  certain 
cities  to  establish  government  by  commission  follow :  — 

That  any  city  of  the  first  class,  or  with  special  charter,  now  or  How  the 
hereafter  having  a  population  of  twenty-five  thousand  or  over,  as  b^^adop^d^ 
shown  by  the  last  preceding  state  census,  may  become  organized 
as  a  city  under  the  provisions  of  this  act  by  proceeding  as  hereinafter 
provided.  Upon  petition  of  electors  equal  in  number  to  twenty- 
five  per  centum  of  the  votes  cast  for  all  candidates  for  mayor  at  the 
last  preceding  city  election  of  any  such  city,  the  mayor  shall,  by 
proclamation,  submit  the  question  of  organizing  as  a  city  under 
this  act  at  a  special  election  to  be  held  at  a  time  specified  therein, 
and  within  two  months  after  said  petition  is  filed.  .  .  . 

In  every  such  city  there  shall  be  elected  at  the  regular  biennial  Election  of 
municipal  election,  a  mayor  and  four  councilmen.  If  any  vacancy  '"ayor  ^"^ 
occurs  in  any  such  office,  the  remaining  members  of  said  council 


53<^ 


American   Government  and   Politics 


Nomination 
by  direct 
primary. 


The  city 
council. 


Powers  of 
city  council. 


shall  appoint  a  person  to  fill  such  vacancy  during  the  balance  of  the 
unexpired  term.  Said  officers  shall  be  nominated  and  elected  at 
large.  Said  officers  shall  qualify  and  their  terms  of  office  shall 
begin  on  the  first  Monday  after  their  election.  .  .  . 

Candidates  to  be  voted  for  at  all  general  municipal  elections  at 
which  a  mayor  and  four  councilmen  are  to  be  elected,  under  the 
provisions  of  this  act  shall  be  nominated  by  a  primary  election, 
and  no  other  names  shall  be  placed  upon  the  general  ballot  except 
those  selected  in  the  manner  hereinafter  prescribed.  .  .  .  The 
two  candidates  receiving  the  highest  number  of  votes  for  mayor 
shall  be  the  candidates  and  the  only  candidates  whose  names  shall 
be  placed  upon  the  ballot  for  mayor  at  the  next  succeeding  general 
municipal  election,  and  the  eight  candidates  receiving  the  highest 
number  of  votes  for  councilmen,  or  all  such  candidates  if  less  than 
eight,  shall  be  the  candidates  and  the  only  candidates  whose  names 
shall  be  placed  upon  the  ballot  for  councilman  at  such  municipal 
election.  .  .  . 

Every  such  city  shall  be  governed  by  a  council,  consisting  of 
the  mayor  and  four  councilmen,  chosen  as  provided  in  this  act, 
each  of  whom  shall  have  the  right  to  vote  on  all  questions  coming 
before  the  council.  .  .  .  The  mayor  shall  preside  at  all  the  meet- 
ings of  the  council ;  he  shall  have  no  power  to  veto  any  measure,  but 
every  resolution  or  ordinance  passed  by  the  council  must  be  signed 
by  the  mayor,  or  by  two  councilmen,  and  be  recorded  before  the 
same  shall  be  in  force.  .  .  . 

The  council  shall  have  and  possess  and  the  council  and  its 
members  shall  exercise  all  executive,  legislative  and  judicial  powers 
and  duties  now  had,  possessed,  and  exercised  by  the  mayor,  city 
council,  board  of  pubUc  works,  park  commissioners,  board  of 
police  and  fire  commissioners,  board  of  waterworks  trustees, 
board  of  library  trustees,  solicitor,  assessor,  treasurer,  auditor, 
city  engineer,  and  other  executive  and  administrative  officers.  .  .  . 
The  mayor  shall  be  superintendent  of  the  department  of  public 
affairs,  and  the  council  shall  at  the  first  regular  meeting  after  the 
election  of  its  members  designate  by  majority  vote  one  council- 


The   Organization  of  Municipal   Government     531 

man  to  be  superintendent  of  the  department  of  accounts  and 
finances;  one  to  be  superintendent  of  the  department  of  public 
safety ;  one  to  be  superintendent  of  the  department  of  streets  and 
public  improvements ;  one  to  be  superintendent  of  the  department 
of  parks  and  public  property ;  but  such  designation  shall  be  changed 
whenever  it  appears  that  the  public  service  would  be  benefited 
thereby.  The  council  shall,  at  the  first  meeting,  or  as  soon  as 
practicable  thereafter,  elect  by  majority  vote  the  following  officers, 
a  city  clerk,  sohcitor,  assessor,  .  .  .  and  such  other  officers  and 
assistants  as  shall  be  provided  for  by  ordinance  and  necessary  to 
the  proper  and  efficient  conduct  of  the  affairs  of  the  city.  .  .  . 
Any  officer  or  assistant  elected  or  appointed  by  the  council  may  be 
removed  from  office  at  any  time  by  vote  of  a  majority  of  the  mem- 
bers of  the  council  except  as  otherwise  provided  for  in  this  act.  .  .  . 

Every  ordinance  or  resolution  appropriating  money  or  ordering 
any  street  improvement  or  sewer,  or  making  or  authorizing  the 
making  of  any  contract,  or  granting  any  franchise  or  right  to  occupy 
or  use  the  streets,  highways,  bridges,  or  public  places  in  the  city 
for  any  purpose,  shall  be  complete  in  the  form  in  which  it  is  finally 
passed  and  remain  on  file  with  the  city  clerk  for  public  inspection 
at  least  one  week  before  the  final  passage  or  adoption  thereof. 
No  franchise  or  right  to  use  the  streets,  highways,  bridges,  or  public 
places  in  any  such  city  shall  be  granted,  renewed,  or  extended, 
except  by  ordinance,  and  every  franchise  or  grant  for  interurban  or 
street  railways,  gas  or  water  works,  electric  light  or  power  plants, 
heating  plants,  telegraph  and  telephone  systems,  or  other  public 
service  utilities  within  said  city  must  be  authorized  or  approved 
by  a  majority  of  the  electors  voting  thereon  at  a  general  or  special 
election.  .  .  . 

The  holder  of  any  elective  office  may  be  removed  at  any  time   The  system 
by  the  electors  qualified  to  vote  for  a  successor  of  such  incumbent.   °  '^^^'^  ' 
The  procedure  to  effect  the  removal  of  an  incumbent  of  an  elec- 
tive office  shall  be  as  follows :  A  petition  signed  by  electors  entitled 
to  vote  for  a  successor  to  the  incumbent  sought  to  be  removed, 
equal  in  number  to  at  least  twenty-five  per  centum  of  the  entire 


532  American   Government  and   Politics 

vote  for  all  candidates  for  the  office  of  mayor  cast  at  the  last 
preceding  general  municipal  election,  demanding  an  election  of 
a  successor  of  the  person  sought  to  be  removed,  shall  be  filed  with 
the  city  clerk,  which  petition  shall  contain  a  general  statement  of  the 
grounds  for  which  the  removal  is  sought.  The  signatures  to  the 
petition  need  not  all  be  appended  to  one  paper,  but  each  signer  shall 
add  to  his  signature  his  place  of  residence,  giving  the  street  and 
number.  One  of  the  signers  of  each  such  paper  shall  make  oath 
before  an  officer  competent  to  administer  oaths  that  the  statements 
therein  made  are  true  as  he  believes,  and  that  each  signature  to 
the  paper  appended  is  the  genuine  signature  of  the  person  whose 
name  it  purports  to  be.  Within  ten  days  from  the  date  of  filing 
such  petition  the  city  clerk  shall  examine  and  from  the  voters' 
register  ascertain  whether  or  not  said  petition  is  signed  by  the 
requisite  number  of  qualified  electors,  and,  if  necessary,  the  council 
shall  allow  him  extra  help  for  that  purpose;  and  he  shall  attach 
to  said  petition  his  certificate,  showing  the  result  of  said  examina- 
tion. If  by  the  clerk's  certificate  the  petition  is  shown  to  be 
insufficient,  it  may  be  amended  within  ten  days  from  the  date  of 
said  certificate.  The  clerk  shall,  within  ten  days  after  such 
amendment,  make  like  examination  of  the  amended  petition,  and 
if  his  certificate  shall  show  the  same  to  be  insufficient,  it  shall  be 
returned  to  the  person  filing  the  same;  without  prejudice,  however, 
to  the  filing  of  a  new  petition  to  the  same  effect.  If  the  petition 
shall  be  deemed  to  be  sufficient,  the  clerk  shall  submit  the  same  to 
the  council  without  delay.  If  the  petition  shall  be  found  to  be 
sufficient,  the  council  shall  order  and  fix  a  date  for  holding  the  said 
election,  not  less  than  thirty  days  or  more  than  forty  days  from  the 
date  of  the  clerk's  certificate  to  the  council  that  a  sufficient  petition 
is  filed.  The  council  shall  make  or  cause  to  be  made  pubHcation 
of  notice  and  all  arrangements  for  holding  such  election,  and  the 
same  shall  be  conducted,  returned,  and  the  result  thereof  declared, 
in  all  respects  as  are  other  city  elections.  The  successor  of  any 
officer  so  removed  shall  hold  office  during  the  unexpired  term  of 
his  predecessor.     Any  person  sought  to  be  removed  may  be  a 


The  Organization  of  Municipal   Government     533 

candidate  to  succeed  himself,  and  unless  he  requests  otherwise 
in  writing,  the  clerk  shall  place  his  name  on  the  official  ballot  with- 
out nomination.  In  any  such  removal  election,  the  candidate 
receiving  the  highest  number  of  votes  shall  be  declared  elected. 
At  such  election  if  some  other  person  than  the  incumbent  receives 
the  highest  number  of  votes,  the  incumbent  shall  thereupon  be 
deemed  removed  from  the  office  upon  qualification  of  his  successor. 
In  case  the  party  who  receives  the  highest  number  of  votes  should 
fail  to  quaUfy  within  ten  days  after  receiving  notification  of  elec- 
tion, the  office  shall  be  deemed  vacant.  If  the  incumbent  receives 
the  highest  number  of  votes,  he  shall  continue  in  office.  The  said 
method  of  removal  shall  be  cumulative  and  additional  to  the  meth- 
ods heretofore  provided  by  law. 

207.   A  Municipal  Legislative  Reference  Bureau 

By  an  act  passed  by  the  legislature  in  1906  the  charter  of  Balti-  The  creation 
more  was  amended  by  the  establishment  of  a  department  of  legis-  department, 
lative  reference.  The  new  department  is  under  the  control  of  a 
board  consisting  of  the  mayor,  city  solicitor,  president  of  Johns 
Hopkins  University,  president  of  the  Municipal  Art  Society,  and 
the  president  of  the  Merchants  and  Manufacturers  Association  of 
Baltimore.  The  members  of  the  board  serve  without  pay.  It  is 
their  duty  to  employ  a  competent  statistician  as  the  executive 
officer  of  the  board  to  organize  and  conduct  the  department.  The 
executive  officer  holds  office  during  good  behavior  and  is  subject 
to  removal  by  a  majority  of  the  board  for  incompetence  or  neglect 
of  duty.     His  salary  must  be  at  least  $2000  a  year. 

The  duties  of  the  executive  head  of  the  department  are  defined  The  duties  of 
as  follows:  "It  shall  be  the  duty  of  said  executive  officer  to  in-  ^g^t^ 
vestigate  and  report  upon  the  laws  of  this  and  other  states  and  cities 
relating  to  any  subject  upon  which  he  may  be  requested  to  so  re- 
port by  the  Mayor  of  Baltimore,  any  committee  of  the  city  council, 
or  the  head  of  any  city  department;  to  accumulate  all  data  ob- 
tainable in  relation  to  the  practical  operation  and  effect  of  such 


534 


American   Government  and   Politics 


laws;  to  investigate  and  collect  all  available  information  relating 
to  any  matter  which  is  the  subject  of  proposed  legislation  by  the 
General  Assembly  of  Maryland  or  the  City  Council  of  Baltimore ; 
to  examine  acts,  ordinances  and  records  of  any  state  or  city,  and 
report  the  result  thereof  to  the  Mayor  of  Baltimore,  any  committee 
of  the  City  Council,  or  the  head  of  any  department  requesting  the 
same;  to  prepare  or  advise  in  the  preparation  of  any  bill,  ordi- 
nance or  resolution  when  requested  to  do  so  by  any  member  of  the 
City  Council ;  to  preserve  and  collate  all  information  obtained, 
carefully  indexed  and  arranged  so  as  to  be  at  all  times  easily 
accessible  to  the  city  officials  and  open  to  the  inspection  of  the 
general  public ;  to  perform  such  other  duties  as  the  said  board  may 
prescribe,  and  to  make  a  full  and  complete  report  thereof  on  or 
before  the  first  day  of  February  of  each  and  every  year,  to  cover 
the  work  for  the  previous  fiscal  year  ending  December  thirty- 
first." 


CHAPTER  XXVIII 

MUNICIPAL  FUNCTIONS 

208.   Municipal  Waterworks  * 

An  investigation  into  the  statistics  of  cities  in  the  United  States 
was  made  by  the  federal  Department  of  Commerce  and  Labor 
in  1905,  and  the  voluminous  report  summing  up  the  results  of 
this  research  contains  the  following  general  conclusions  relating 
to  waterworks :  — 

No  subject  connected  with  the  management  of  cities  in  the  old  or  Importance 
new  world  is  attracting  more  attention  at  the  present  time  than  the   owned 
operation  of  governmental  industries,  of  which  waterworks  are   waterworks, 
among  the  most  important.     Of  the  154  cities  for  which  reports 
were  secured  for  this  bulletin,  113,  or  73.4  per  cent,  owned  or 
operated,  or  owned  and  operated,  systems  for  supplying  water  to 
their  citizens;   and  of  the  $831,368,707  invested  in  city  industries, 
$535,957,239,  or  64.4  per  cent,  represented  the  investments  in 
waterworks.     The    importance    of   waterworks    in    the    financial 
management  of  cities  is  shown  not  only  by  the  foregoing  figures, 
but  by  the  fact  that,  with  the  exception  of  markets  and  public 
scales,  waterworks  have  been  operated  by  cities  for  a  longer  time 
than  any  other  class  of  municipal  industries. 

It  might  be  expected,  therefore,  that  the  cities  of  the  United  States   The  con- 
would  before  this  have  developed  systems  of  accounting  that  would  ^^  account- 
show  the  results  of  the  operation  of  these  industries  as  fully  as  do  ing. 
the  systems  of  privately  owned  waterworks,  since  the  reports  of 
such  waterworks  are  prepared  by  corporations  for  the  benefit  of 
their  stockholders.     Such,  however,  is  not  the  case.     One  of  the 
results  of  this  condition  of  affairs  is  that  it  is  possible  for  an  advo- 
cate of  any  particular  policy  of  furnishing  pubhc  utilities,  either 
by  the  cities  or  by  private  corporations,  to  make  almost  any  state- 

535 


ss^ 


American  Government  and  Politics 


Policy  of 
manage- 
ment. 


Operation 
on  a  busi- 
ness basis. 


ment  concerning  the  comparative  results  of  the  operation  of  exist- 
ing systems  of  public  and  of  privately  owned  industries  of  the  same 
class,  without  any  chance  of  verification  by  reference  to  actual 
statistics.  This  condition  of  afifairs  will  continue  until  the  cities 
are  able  to  provide,  and  do  provide,  accounts  and  statistics  of  the 
operation  of  their  industries  —  and  especially  waterworks  —  that 
will  furnish  all  the  information  which  an  accountant  or  a  student 
of  municipal  affairs  may  need  for  determining  the  measure  of 
success  attending  the  operation  of  municipal  industries. 

Cities  may  adopt  any  one  of  half  a  dozen  policies  in  the  manage- 
ment of  their  industries.  The  accounts  of  each  city  should  be 
kept  in  such  a  manner  as  to  show  the  measure  of  success  which 
has  been  secured  in  the  operation  of  the  industry  in  accordance 
with  the  policy  adopted.  Of  the  possible  poHcies  which  cities 
may  adopt,  mention  is  here  made  of  the  following: 

A  city  may  seek  to  operate  industries  so  as  to  pay  all  of  the 
operating  expenses  and  the  interest  on  investments,  and  also  to 
make  full  provision  for  depreciation  and  sinking  funds,  such  as 
is  called  for  by  good  business  management  on  the  part  of  a  pri- 
vately owned  corporation.  This  is  the  avowed  policy,  at  the 
present  time,  of  nearly  all  British  cities  in  the  operation  of  their 
waterworks.  In  Great  Britain  these  industries  are  taxed  the  same 
as  are  privately  owned  industries.  This  taxation  is  based  on  the 
assumption  that  when  a  city  operates  a  municipal  industry  that 
industry  takes  the  place  of  a  privately  operated  industry,  and  the 
city  must  allow  taxes  on  its  plant  or  the  industry  is  not  conducted 
on  the  same  basis  as  a  similar  privately  owned  industry,  and  its 
measure  of  success  is  determined  by  different  standards.  On 
the  other  hand,  most  British  cities  credit  their  waterworks  and 
charge  their  general  expense  account  with  all  the  water  which 
the  cities  use  for  municipal  purposes.  This  is  a  considerable 
amount,  as  the  city  is  the  largest  single  consumer  of  water  within 
any  municipahty.  But  few  American  cities  in  their  accounts 
with  waterworks,  credit  them  with  water  consumed,  and  none  of 
them  collect  taxes  from   their  waterworks.     In  a  general  way, 


Municipal   Functions  537 

they  assume  that  the  water  which  the  city  uses  approximates  in 
value  the  losses  of  taxes  due  to  the  substitution  of  an  industry  owned 
by  the  city  for  a  privately  owned  industry.  If  a  city  adopts  the 
policy  of  operating  its  waterworks  on  the  basis  of  earning  interest 
on  its  investments,  it  should  determine  in  advance  what  is  meant 
by  such  earning  —  whether  it  is  to  be  on  a  basis  that  requires 
allowances  for  taxation,  depreciation,  and  sinking  funds  on  the 
one  side  and  for  cost  of  water  consumed  on  the  other,  or  whether 
some  other  possible  combination  of  these  costs  and  allowances 
is  to  be  used. 

A  city  may  adopt  the  policy  of  furnishing  the  water  to  its  citizens  The  cost 
at  cost.  But  what  is  meant  by  this  phrase  "at  cost"?  Does  that 
term  include  any  of  the  allowances  for  interest  on  investments, 
taxes,  and  depreciation,  or  not?  This  is  something  for  cities  to 
determine,  for  they  should  not  allow  the  business  to  drift  into 
any  of  the  possible  methods  of  management  without  conscious 
knowledge  of  what  the  actual  basis  of  management  is. 

The  city  may,  from  considerations  of  public  poHcy,  conduct  Public 
its  waterworks  and  other  industries  so  as  to  furnish  public  utilities  ^  ^^^' 
to  its  citizens  at  less  than  cost.  In  that  case  it  should  determine 
the  basis  on  which  that  cost  is  determined,  so  as  to  know  what 
the  taxpayers  are  contributing,  directly  or  indirectly,  by  reason 
of  the  estabhshment  of  industries,  in  meeting  interest  on  their 
indebtedness,  and  in  paying  off  through  sinking  funds  or  other- 
wise the  original  costs  of  industrial  plants. 

In  this  connection,  attention  is  called  to  the  fact  that  in  a  few  The  debts 
states  the  statutes,  in  establishing  limits  for  municipal  borrow-  ^vorks. 
ing,  except  the  debts  of  waterworks.  This  exceptional  treatment 
of  the  debts  of  waterworks  is  based  upon  the  legislative  policy  of 
having  this  class  of  municipal  industries  so  managed  as  to  pay  all 
operating  expenses,  including  interest,  and  provide  for  the  amorti- 
zation of  loans  from  their  income.  On  this  basis  of  management 
their  debts  are  properly  e.xempted  from  consideration  in  legisla- 
tion limiting  the  borrowing  power  of  cities,  since  the  interest 
and  principal  of  such  debts  are  fully  met  from  industrial  income, 


S3« 


American   Government  and   Politics 


and  thus  do  not  rest  as  a  burden  upon  the  taxpayer  or  constitute 
an  economic  Hen  upon  their  property.  With  this  limitation  of 
indebtedness,  it  is  incumbent  upon  the  city  officials  not  only  so 
to  manage  the  waterworks  as  to  realize  these  expected  results,  but 
also  to  show  by  proper  accounting  methods  that  such  managerial 
results  are  being  attained. 

The  Bureau  of  the  Census  does  not  concern  itself  with  deter- 
mining what  is  the  true  policy  on  which  cities  should  manage 
their  waterworks  and  other  industries.  It  wishes,  however,  to 
emphasize  the  fact  that  methods  of  management  should  rest  on 
some  policy,  directed  by  sound  accounting  control,  which  will 
present  to  the  public  all  detailed  information  needed  to  show  the 
results  of  management  in  conformity  with  the  policy  adopted. 


209.   A  Mayor^s  Fight  for  Good  Electric  Light  Service 

The  Hon.  James  M.  Head,  former  Mayor  of  Nashville,  Tennes- 
see, in  an  address  before  the  annual  conference  of  the  National 
Municipal  League  in  1906,  gave  an  interesting  account  of  his 
struggle  to  free  the  city  from  the  control  of  an  electric  lighting 
corporation  that  was  giving  poor  service :  — 

I  found  the  electric  light  company  with  a  contract  with  the  city 
for  ten  years,  about  five  years  of  which  had  expired.  They  sup- 
plied the  city  with  lights  at  eighty-five  dollars  per  arc  light  per 
annum.  They  were  charging  the  people  of  the  city  eighteen 
cents  per  kilowatt  for  electricity,  both  of  which  charges  I  regarded 
as  extortionate.  I  went  to  the  company  and  asked  for  a  read- 
justment, and  the  cancellation  of  their  contract  with  the  city.  I 
was  laughed  at.  No  consideration  was  given  to  me,  and  I  was 
again  up  against  a  serious  proposition.  Fortunately,  however, 
in  looking  back  through  the  acts  of  the  Legislature,  I  found  au- 
thority for  the  city  to  issue  one  hundred  and  fifty  thousand  dollars 
of  bonds,  to  buy  or  build  an  electric  light  plant  to  light  the  streets, 
but  with  no  power  to  sell  electricity  to  private  consumers  —  simply 
to  light  the  public  buildings  and  streets  of  the  city. 

The  Legislature  assembled  in   1901,  and  I  concluded  that  I 


Municipal   Functions 


539 


would  ask  the  Legislature  to  amend  the  city  charter  and  give  the 
city  the  power  to  sell  electric  light,  heat  and  power  to  private  con- 
sumers. It  was  a  matter  in  which  no  one  was  concerned  but  the 
people  of  Nashville.  The  City  Council  unanimously  endorsed 
it.  The  people  of  Nashville  were  practically  unanimous  for  it, 
all  except  those  interested  in  public  service  corporations,  and  I 
went  before  the  Legislature  thinking  I  would  have  no  trouble. 
I  had  the  fight  of  my  life.  Every  corporate  influence  in  Tennessee 
was  represented  before  that  Legislature  with  its  personal,  financial 
and  other  influences  to  defeat  that  bill  and  prevent  the  city  of 
Nashville  from  acquiring  that  little  right  to  sell  electric  light, 
heat  and  power  to  private  consumers.  I  spent  nearly  my  entire 
time  during  the  session  of  the  Legislature  trying  to  secure  that 
right  for  the  city. 

Finally  I  succeeded  by  a  very  close  vote.  After  acquiring  that 
power,  I  again  endeavored  to  readjust  the  contract  which  the 
private  company  had  with  the  city.  They  refused,  and  I  im- 
mediately undertook  the  building  of  an  electric  light  plant.  By 
the  time  the  foundations  of  that  electric  light  plant  were  laid,  the 
private  company  came  forward  and  voluntarily  (?)  reduced  the 
price  of  electricity  to  private  consumers  from  eighteen  cents  to 
twelve  cents  per  kilowatt.  Before  the  plant  was  completed,  the 
private  company  was  making  every  contract  it  possibly  could 
with  private  consumers  for  a  term  of  years  at  five  and  six  cents 
per  kilowatt.  When  the  plant  was  completed,  there  were  about 
three  years  of  their  contract  with  the  city  unexpired. 

I  went  to  the  representatives  of  the  private  company  and  told 
them  that  the  city  was  now  ready  to  engage  in  the  electric  light 
business,  and  wanted  to  know  what  they  would  do.  At  first 
nothing.  But  finally  they  concluded  that  the  contract  with  the 
city  did  not  pay  them  anything  anyway ;  that  it  was  an  expense 
to  them,  and  that  they  had  a  demand  for  all  the  light  and  power 
that  their  plant  could  furnish,  and  if  I  wanted  to  I  could  take  over 
the  lighting  of  the  streets  and  public  buildings  of  the  city.  So 
on  the  first  of  September,  1902,  the  city  took  over  the  lighting  of 


The  contest 
carried  to  the 
legislature. 


The  com- 
pany's 
charges 
reduced. 


The  city 
undertakes 
its  own 
hghting. 


540 


American  Government  and   Politics 


its  public  streets.  For  the  year  prior  to  that,  the  city  had  paid 
$49,270  for  lighting  its  streets  and  public  buildings. 

For  the  year  after  the  city  took  charge  of  it  we  furnished  to 
the  city  more  than  double  the  amount  of  light  that  we  had  pre- 
viously had  at  a  cost  of  $33,500.  The  cost  of  producing  electricity, 
including  operating  expenses,  interest  upon  bonds,  repairs,  im- 
provements and  everything  except  an  estimate  for  the  depreciation 
of  the  plant,  was  the  first  year  a  little  over  two  and  one-half  cents 
per  kilowatt,  and  it  is  being  produced  to-day  at  about  2.10  cents 
per  kilowatt. 

When  the  private  company  agreed  for  the  city  to  take  over  the 
lighting  of  its  streets  and  public  buildings,  I  agreed  with  them  as 
Mayor  during  the  remainder  of  my  term  of  office  that  the  city 
would  not  engage  in  any  private  business,  provided  they  con- 
tinued to  furnish  electricity  at  the  prices  they  were  then  charging, 
and  I  understand  that  since  my  retirement  from  office,  that  agree- 
ment has  been  kept,  and  the  lighting  company  is  making  more 
money  to-day  than  it  did  when  it  charged  eighteen  cents.  The 
city  is  lighting  its  streets  and  public  buildings  and  is  not  engaging 
in  private  work.  But  if  the  city  had  never  turned  a  wheel  of  that 
plant  costing  $150,000,  it  would  more  than  have  paid  for  itself 
in  three  years  in  the  reduction  that  it  obtained  for  the  private 
consumers  of  the  city  in  the  price  of  electricity.  It  could  afford 
to  keep  that  plant  standing  idle,  and  never  turn  a  wheel,  and  it 
would  save  to  the  people  the  interest  upon  the  investment  ten 
times  over  every  year. 


210. 


Work  of  a  Tenement  House  Department 


The  first  report  of  the  Tenement  House  Department  of  New 
York  City  contains  this  general  summary  of  a  gigantic  task  ac- 
complished in  less  than  two  years  (1902-1903) :  — 

On  January  i,  1902,  a  new  department  of  the  city  government 
known  as  the  Tenement  House  Department  was  created.  Since 
that  time  all  the  tenement  houses  in  New  York  have  been  examined 


Municipal   Functions  541 

and  their  condition  ascertained.  Tenement  conditions  in  many- 
instances  have  been  found  to  be  so  bad  as  to  be  indescribable  in 
print;  vile  privies  and  vile  sinks;  foul  cellars  full  of  rubbish,  in 
many  cases  of  garbage  and  decomposing  fecal  matter;  dilapidated 
and  dangerous  stairs;  plumbing  pipes  containing  large  holes 
emitting  sewer  gas  throughout  the  houses;  rooms  so  dark  that 
one  cannot  see  the  people  in  them;  cellars  occupied  as  sleeping 
places;  dangerous  bakeries  without  proper  protection  in  case  of 
fire;  pigs,  goats,  horses  and  other  animals  kept  in  cellars;  dan- 
gerous old  fire  traps  without  fire  escapes;  disease-breeding  rags 
and  junk  stored  in  tenement  houses;  halls  kept  dark  at  night, 
endangering  the  lives  and  safety  of  the  occupants;  buildings 
without  adequate  water  supply  —  the  list  might  be  added  to  al- 
most indefinitely. 

The  cleansing  of  the  Augean  stables  was  a  small  task  compared  The  task 
to  the  cleansing  of  New  York's  82,000  tenement  houses,  occupied  department, 
by  nearly  three  millions  of  people,  representing  every  nationality 
and  every  degree  in  the  social  scale.  The  task  that  confronted 
the  department  was  not,  however,  Hmited  to  this.  Without  or- 
ganization, without  employees,  with  all  its  problems  before  it,  it 
was  on  the  very  day  that  it  came  into  existence  confronted  with 
an  organized  and  vigorous  attack  in  the  Legislature  upon  the 
fundamental  principles  of  the  law  for  whose  enforcement  it  was 
created.  Without  previous  records,  with  almost  no  information 
in  regard  to  the  condition  of  the  existing  tenement  houses,  it  was 
called  upon  to  carry  out  an  important  and  far-reaching  scheme 
for  their  improvement,  involving  the  structural  alteration  of  over 
40,000  buildings. 

In  the  period  under  consideration  in  this  report  a  new  branch   The  develop- 
of  the  city  government  has  been  organized,  its  machinery  created  j^j.^.^ 
and  a  force  of  about  400  employees  trained,  disciplined  and  edu- 
cated;   far-reaching  and  important  advances  in  legislation  have 
been  secured  as  a  result  of  the  department's  action,  and  radical 
and  vicious  attempts  to  break  down  the  tenement  laws  defeated. 

Living  accommodations  for  16,768  families,  or  83,840  persons, 


542 


American  Government  and  Politics 


have  been  provided  In  sanitary,  comfortable,  and  decent  houses, 
each  one  of  which  has  been  built  according  to  law:  notorious 
evasion  of  and  non-compliance  with  the  laws  has  given  place  to 
their  complete,  uniform  and  impartial  enforcement;  the  evil  of 
prostitution  has  been  practically  abolished  in  the  tenement  houses ; 
337,246  inspections  have  been  made;  55,055  violations  filed; 
21,584  repairs  made  to  plumbing;  13,617  water-closets  cleaned; 
11,611  accumulations  of  filth  removed  from  cellars  and  other  parts 
of  such  buildings ;  13,732  ceilings  cleaned;  15,364  walls  cleaned; 
10,060  unsafe  wooden  floors  removed  from  fire  escapes  and  new 
iron  floors  substituted;  1,701  fire  escapes  erected  on  buildings 
that  before  were  without  this  protection. 

The  registration  of  44,500  owners'  names  has  been  secured, 
thus  fixing  the  responsibility  for  bad  conditions  in  the  tenements; 
contagious  disease  has  been  checked  and  prevented;  32,825  citi- 
zens' complaints  have  been  investigated  and  the  conditions  com- 
plained of  remedied;  and  an  important  tabulation  and  presen- 
tation of  the  population  in  every  tenement  house  block  in  the 
Borough  of  Manhattan  has  been  prepared  that  will  be  of  incal- 
culable value  to  the  city. 

The  existing  tenement  houses  have  been  frequently  and  sys- 
tematically inspected;  foul  cellars  have  had  the  accumulated 
filth  of  years  removed;  defective  and  unsanitary  plumbing  which 
had  apparently  existed  for  long  periods  has  been  remedied; 
houses  unfit  for  human  habitation  vacated;  hundreds  of  houses 
have  been  radically  reconstructed  and  improved;  light  has  been 
let  into  dark  rooms;  vile  yard  privies  and  privy  sinks  have 
been  removed  and  the  whole  sanitary  condition  of  the  city  raised 
to  a  higher  standard.  The  results  of  this  work  are  clearly  reflected 
in  the  reduced  death  rate,  which  in  1902  was  18.7  as  compared 
with  20.0  in  1901,  and  in  the  first  eight  months  of  1903  has  been 
reduced  to  18.0. 


Municipal   Functions  543 

211.    The  Health  Department  of  a  City  * 

Some  notion  of  the  multifarious  activities  of  a  municipal  health  bu- 
reau can  be  gathered  from  this  extract  from  a  recent  departmental 
report  published  by  the  City  of  Cleveland,  Ohio :  — 

There  are  about  3,500  farms  which  furnish  milk  for  Cleveland.  Supervision 
Since  the  estabhshment  of  dairy  inspection  last  August  to  the  end  supply, 
of  the  year  630  dairies  have  been  inspected  and  scored  according 
to  the  direction  and  on  the  score  cards  used  by  the  Department 
of  Agriculture.  The  average  score  was  44  points,  which  means 
a  farm  that  ought  not  to  be  allowed  to  send  milk  to  Cleveland. 
The  number  of  cows  which  furnish  milk  to  Cleveland  is  esti- 
mated at  about  30,000;  427  have  been  tested  with  tuberculin 
and  109  of  these  or  25.52  per  cent  reacted,  were  killed  and 
shown  by  post  mortem  to  have  been  tubercular.  If  this  ratio 
should  hold  then  7,656  tubercular  cows  are  furnishing  milk  to 
the  Cleveland  market  at  the  present  date.  The  danger  is  ob- 
vious. How  to  avert  it?  If  we  average  a  cow  at  forty  dollars,  it 
would  take  $306,240.00  to  pay  for  all  these  cows  and  to  get  rid  of 
them.  The  sum  is  not  so  large  as  to  make  the  solution  of  the 
problem  an  impossibility. 

In  the  great  struggle  with  tuberculosis  which  is  going  on  now  The  fight 
all  over  the  civilized  world,  Cleveland  is  not  behind  time.  The  city  ^ubg"^^]  • 
possesses  a  sanitarium  on  the  City  Hospital  grounds  and  another 
in  Warrensville.  Both  are  of  the  approved  type  of  modern  struc- 
tures, especially  designed  for  the  treatment  of  this  disease.  With- 
out them  we  would  be  greatly  handicapped  in  our  efforts  to  re- 
trench the  ravages  of  the  White  Plague.  The  more  patients  can 
be  induced  to  seek  treatment  in  them,  the  better  it  will  be  for  both 
patients  and  city.  The  patients'  chances  for  recovery  are  greatly 
enhanced.  They  are  kept  in  pure  air  day  and  night  and  learn,  in 
a  practical  way,  how  to  take  care  of  the  sputum  lest  they  become 
dangerous  to  their  fellow  men.  The  city  is  delivered  from  a  con- 
tinual source  of  infection,  the  family  receiving  the  greatest  ben- 
efit.    The  money  spent  for  the  maintenance  of  these  hospitals  is  a 


544 


American  Government  and  Politics 


good  investment.  The  amount  of  danger  taken  and  kept  away 
from  all  citizens  is  incalculable.  The  educational  feature  of  these 
institutions  is  not  the  least  important,  for  the  practical  demonstra- 
tion of  the  need  of  precaution  and  how  to  take  it  to  avoid  self- 
infection  and  infection  of  others  is  most  fruitful  of  beneficial 
results. 

As  not  all  tubercular  patients  can  go  to  the  hospitals,  clinics 
become  a  necessity  for  the  care  of  the  poor  unfortunates  who  must 
stay  in  the  harness  as  long  as  there  is  an  atom  of  strength  left  in 
them.  These  clinics  should  be  held  at  convenient  hours  so  that 
the  patients  can  come  to  them  in  the  mornings  before  they  go  to 
work  and  in  the  evening  after  their  day's  labor  is  over.  As  long  as 
these  poor  people,  in  their  very  infirmity,  which  was  brought  upon 
them  without  any  fault  of  their  own,  strive  to  the  utmost  to  take 
care  of  themselves  and  their  families,  the  benevolent  attention  of 
the  community  must  keep  a  watchful  eye  over  them.  To  stretch 
out  a  helping  hand  to  them  is  not  an  act  of  charity  but  the  mandate 
of  duty. 

Then  the  economical  side  has  to  be  considered:  Keep  these 
people  self-supporting  and  we  accomphsh  a  great  deal.  Last, 
not  least,  is  the  sanitary  aspect.  If  we  could  get  hold  of  all  our 
poor  tubercular  and  instruct  them  how  to  live  in  order  to  regain 
the  road  to  health,  what  a  blessing  we  could  bestow  upon  them. 
If  we  could  prevail  upon  them  to  be  careful  with  their  sputum, 
what  a  danger  we  could  take  away  from  their  families,  their  co- 
workers and  the  citizens  in  general.  Just  to  help  these  poor  peo- 
ple along,  who  have  to  work,  but  on  account  of  their  physical 
weakness  are  not  able  to  earn  enough  wages  to  consult  a  physician, 
I  established  a  tubercular  clinic  in  the  City  Infirmary  Office, 
spending  out  of  my  office  hours  from  two  to  three  hours  daily  in 
examining  and  treating  patients. 

The  necessity  of  a  contagious  disease  hospital  becomes  every 
year  more  apparent.  If  we  should  have  an  epidemic  of  scarlet 
fever  or  diphtheria,  forced  hospitalization  of  patients  would  fre- 
quently become  necessary,  as  it  is  impossible  to  keep  an  infected 


Municipal  Functions  545 

family  in  a  crowded  tenement  house  strictly  isolated.  In  New 
York  City  all  such  cases  are  taken  to  the  hospital,  by  force  if  nec- 
essary. In  Chicago  they  just  passed  through  a  serious  outbreak 
of  scarlet  fever,  having  as  many  as  sixteen  hundred  cases  a  week. 
The  disease  did  not  come  on  suddenly.  It  developed  rather 
slowly,  and  the  health  officials  informed  me  that  the  lack  of  a  hos- 
pital for  contagious  diseases  was  one  of  the  main  factors  in  its 
spreading.  The  Cook  County  Hospital  took  as  many  patients 
from  the  city  as  it  could,  but  it  was  soon  filled  up  and  every  case 
had  to  be  left  where  it  developed.  That  was  the  way  the  disease 
got  beyond  control.  In  Cleveland  we  have  no  county  hospital. 
We  have  practically  nothing.  In  case  of  an  epidemic  we  would 
be  in  a  deplorable  state  and  would  be  criticized  by  the  whole 
United  States,  and  justly  so.  The  erection  of  a  contagious  disease 
hospital  ought  not  to  be  delayed  another  season. 

People  do  not  crowd  because  they  like  to,  they  crowd  because  Crowded 
they  have  to  in  order  to  reach  their  destination.  The  problem 
cannot  be  solved  by  preventing  people  from  boarding  an  already 
filled  car,  but  by  putting  more  cars  on  the  tracks.  There  have 
never  been  enough  cars  running  during  the  so-called  crowded 
hours  to  convey  all  passengers  in  a  decent  way.  This  can  be 
shown  by  a  very  little  figuring.  In  the  morning  people  have  to 
reach  their  work  at  the  appointed  hours  and  the  tendency  of  people 
to  hurry  home  after  their  day's  work  is  done  is  laudable  and  needs 
encouraging  rather  than  checking.  I  do  not  think  it  would  be 
wise  to  prevent  people  from  boarding  cars  and  to  make  them  wait 
for  hours  around  the  cold  street  corners  without  protection  from 
rain  and  snow.  The  city  must  ultimately  force  the  street  car  man- 
agement to  keep  up  with  the  growth  of  the  city  in  number  of  lines 
and  cars  needed  for  the  sanitary  conveyance  of  the  passengers. 

212.   Mimicipal  Parks  * 

The  way  in  which  a  modern  city  attempts  to  provide  healthful 
recreation  for  the  people  is  illustrated  by  this  statement  recently 
made  by  the  director  of  parks  in  Cleveland,  Ohio :  — 


546 


American  Government  and   Politics 


The  policy  inaugurated  by  the  present  administration  of  abolish- 
ing the  "Keep  Ofif  the  Grass"  signs  and  conducting  the  parks  in 
the  interests  and  for  the  welfare  of  all  the  people  of  Cleveland, 
regardless  of  their  social  standing  or  financial  rating ;  of  providing 
healthful  forms  of  recreation  and  amusement  for  both  young  and 
old,  and  of  extending,  enlarging  and  improving  the  park  system 
to  keep  pace  with  the  city's  needs  and  growth,  has  been  continued 
and  broadened.  The  usual  special  attractions  were  presented 
during  the  past  year,  and  served  to  draw  thousands  of  visitors  to 
the  parks  who  would  otherwise  have  remained  in  ignorance  of 
what  Cleveland  possesses  in  the  way  of  landscape  beauty  in  its 
really  beautiful  park  system. 

Thirty-seven  Sunday  and  26  evening  band  concerts  were  given 
during  the  past  summer,  a  total  of  63,  as  against  49  in  1905.  Two 
concerts  were  held  each  Sunday  —  one  on  the  West  Side,  alternat- 
ing between  Edgewater  and  Brookside  Parks,  and  one  on  the  East 
Side  in  either  Gordon,  Woodland  Hills,  Garfield  or  Washington 
Park.  The  evening  concerts  were  held  at  the  smaller  parks, 
giving  each  section  of  the  city  an  opportunity  to  share  in  the  pleas- 
ure this  form  of  entertainment  furnishes. 

The  special  days  have  come  to  be  looked  forward  to  as  annual 
events.  "May  Day"  was  celebrated  on  June  2nd  in  Gordon, 
Garfield,  Brookside  and  Edgewater  Parks.  Great  interest  was 
aroused  on  this  occasion  by  the  selection,  by  lot,  of  the  May  Queens 
and  Maids  of  Honor  at  each  park  before  the  ceremonies  com- 
menced. "Turners'  Day"  was  held  at  Rockefeller  Park  on  Sun- 
day, June  3rd,  by  the  German  Turning  Societies.  The  annual 
romp  of  the  children,  formerly  known  as  "Romping  Day,"  was 
held  on  Monday,  July  23rd,  and  called  "Cleveland  Day"  in  ob- 
servance of  the  newly  established  holiday  in  memory  of  the  birth 
of  the  city,  which  fell  on  Sunday,  the  22nd.  The  program  was 
rendered  at  Gordon,  Wade,  Woodland  Hills,  Garfield,  Edgewater 
and  Brookside  Parks.  The  members  of  the  City  Council  con- 
tributed to  the  success  of  the  celebration  by  assisting  in  arranging 
the  games  and  races  and  distributing  the  prizes.     Special  exer- 


Municipal   Functions  547 

cises  were  also  held  on  this  day  in  the  Public  Square  by  the 
Old  Settlers'  Association.  "Orphans'  Day"  was  conducted  on 
August  7th  under  the  auspices  of  the  Cleveland  Automobile  Club. 
The  hundreds  of  inmates  of  the  Cleveland  Orphan  Asylums  were 
given  a  ride  through  the  city's  parks  and  treated  to  a  lunch  at 
Gordon  Park.  ... 

On  account  of  the  mildness  of  the  weather,  the  main  events  in  Winter 
the  winter  sports  program  had  to  be  abandoned.  However,  a 
number  of  carnivals  were  held  on  the  small  corner  lot  skating 
rinks.  Besides  the  seven  park  lakes,  35  of  these  made-ponds 
were  in  operation  during  the  winter  of  1905-1906.  During  the 
present  winter  there  are  four  rinks  less  than  last  year  in  operation, 
due  to  the  fact  that  some  of  the  lots  formerly  used  have  been  built 
upon  and  that  it  is  becoming  harder  to  secure  suitable  locations 
adjacent  to  water  facilities. 

During  last  summer  20  baseball  diamonds  were  maintained  in  Provision  for 
the  parks  and  30  on  vacant  lots  in  different  parts  of  the  city. 
Seven  leagues  were  accommodated  almost  entirely  on  these  grounds 
each  Saturday  afternoon,  while  the  demands  from  independent 
*  teams  for  grounds  by  far  exceeded  the  number  available,  notwith- 
standing the  fact  that  the  afternoon  was  divided  so  as  to  provide 
for  two  games  being  played  on  each  diamond.  Eight  foot-ball 
gridirons  were  laid  out  in  the  parks.  Two  of  these  were  exclu- 
sively for  socker  football.  The  golf  links  of  43  acres  in  Gordon 
Park  were  largely  used  during  the  golf  season.  On  account  of  the 
proximity  of  the  new  shelter  house  to  the  links,  and  the  consequent 
danger  of  injury  being  inflicted  on  the  spectators  and  park  visitors, 
the  Hnks  will  be  established  in  Woodland  Hills  Park  the  coming 
season,  where  the  space  for  playing  this  game  is  larger  and  more 
suitable.  A  cricket  ground  is  located  in  Gordon  Park.  This  is 
cared  for  and  the  materials  furnished  by  the  Cleveland  Cricket 
Club.  Three  tennis  courts  were  equipped  in  the  parks  last  sum- 
mer —  two  at  Garfield  Park  and  one  at  Edgewater. 

During   the   past   summer  this  department  maintained  public   P'ay- 
playgrounds  in  four  of  the  parks,  —  Clinton,  Fairview,  Lincoln  ^™" 


548 


American  Government  and   Politics 


and  Washington,  —  and  on  four  vacant  lots  in  congested  sections 
of  the  city.  These  grounds  are  equipped  with  basket  ball  courts, 
travelling  and  flying  rings,  sliding  bars,  swings,  giant  strides,  turn- 
ing poles,  horizontal  and  parallel  bars,  trapezes,  teeter-boards 
and  ladders  and  sand  piles.  Each  ground  is  in  charge  of  an  in- 
structor, who  improvises  games  for  the  entertainment  of  the  chil- 
dren. The  instructors  are  young  men  with  college  training,  who 
are  familiar  with  athletic  work. 


Competition 
ineffective 
as  a  regu- 
lator. 


Sanitary 
under- 
takings. 


Revenue- 
producing 
utilities. 


213.    TJie  Question  of  Municipal  Ownership 

In  1907  the  National  Civic  Federation  appointed  a  Commis- 
sion on  Public  Ownership  which  made  a  careful  and  exhaustive 
investigation  into  municipal  utilities  in  Great  Britain  and  the 
United  States.  At  the  conclusion  of  the  work  the  Commission 
agreed  on  the  following  general  principles:  — 

First,  we  wish  to  emphasize  the  fact  that  the  public  utilities 
studied  are  so  constituted  that  it  is  impossible  for  them  to  be  regu- 
lated by  competition.  Therefore,  they  must  be  controlled  and 
regulated  by  the  government;  or  they  must  be  left  to  do  as  they 
please ;  or  they  must  be  operated  by  the  public.  There  is  no  other 
course.  None  of  us  is  in  favor  of  leaving  them  to  their  own  will, 
and  the  question  is  whether  it  is  better  to  regulate  or  to  operate. 
There  are  no  particular  reasons  why  the  financial  results  from  pri- 
vate or  public  operation  should  be  different  if  the  conditions  are  the 
same.  In  each  case  it  is  a  question  of  the  proper  man  in  charge 
of  the  business  and  of  local  conditions. 

We  are  of  the  opinion  that  a  public  utility  which  concerns  the 
health  of  the  citizens  should  not  be  left  to  individuals,  where  the 
temptation  of  profit  might  produce  disastrous  results,  and  therefore 
it  is  our  judgment  that  undertakings  in  which  the  sanitary  motive 
largely  enters  should  be  operated  by  the  public. 

We  have  come  to  the  conclusion  that  municipal  ownership  of 
public  utilities  should  not  be  extended  to  revenue-producing  in- 
dustries which  do  not  involve  the  public  health,  the  public  safety, 
public   transportation,   or  the  permanent  occupation  of  public 


Municipal   Functions  549 

streets  or  grounds,  and  that  municipal  operation  should  not  be 
undertaken  solely  for  profit. 
We  are  also  of  opinion  tliat  all  future  grants  to  private  com-   Terminable 

<■         1  •  1  •  r        I  !•  •!•  •         1        1  .    franchises. 

panics  for  the  construction  and  operation  of  pubhc  utilities  should 
be  terminable  after  a  certain  fixed  period,  and  that  meanwhile 
cities  should  have  the  right  to  purchase  property  for  operation, 
lease,  or  sale,  paying  its  fair  value. 

To  carry  out  these  recommendations  effectively  and  to  protect  States 
the  rights  of  the  people,  we  recommend  that  the  various  states  certain 
should  give  their  municipalities  the  authority,  upon  popular  vote  powers  to 
under  reasonable  regulations,  to  build  and  operate  public  utilities, 
or  to  build  and  lease  the  same,  or  to  take  over  works  already  con- 
structed.    In  no  other  way  can  the  people  be  put  upon  a  fair  trad- 
ing basis  and  obtain  from  the  individual  companies  such  rights 
as  they  ought  to  have.     We  believe  that  this  provision  will  tend  to 
make  it  to  the  enlightened  self-interest  of  the  public  utility  com- 
panies to  furnish  adequate  sen'ices  upon  fair  terms,  and  to  this 
extent  will  tend  to  render  it  unnecessar}^  for  the  public  to  take  over 
the  existing  utilities  or  to  acquire  new  ones.  .  .  . 

Our  investigations  teach  us  that  no  municipal  operation  is  likely   Conditions 
to  be  highly  successful  that  does  not  provide  for:  operation. 

First — An  executive  manager  with  full  responsibility,  holding  his 
position  during  good  behavior. 

Second  —  Exclusion  of  political  influence  and  personal  favoritism 
from  the  management  of  the  undertaking. 

Third  —  Separation  of  the  finances  of  the  undertaking  from  those 
of  the  rest  of  the  city. 

Fourth  —  Exemption  from  the  debt  limit  of  the  necessary  bond 
issues  for  revenue-producing  utilities,  which  shall  be  a  first  charge 
upon  the  property  and  revenues  of  such  undertaking. 

214.    The  Case  for  Municipal  Ownership 

Dr.  Albert  Shaw,  a  distinguished  student  of  municipal  govern- 
ment, has  succinctly  summed  up  the  case  for  public  ownership  as 
follows :  — 


55^ 


American  Government  and   Politics 


All  the  monopolies  of  service,  such  as  gas,  water,  trams  and  the 
like,  should  belong  to  the  community.  Simplify  the  administra- 
tion, trust  the  people,  give  the  municipality  plenty  to  do,  so  as  to 
bring  the  best  men  to  the  w^ork,  keep  all  the  monopolies  of  service 
in  the  hands  of  the  municipality,  and  use  the  authority  and  in- 
fluence of  the  municipality  in  order  to  secure  for  the  poorest  ad- 
vantages in  the  shape  of  cheap  trams,  healthy  and  clean  lodgings, 
baths,  wash-houses,  hospitals,  reading  rooms,  etc. 

The  pressure  that  would  be  brought  to  bear  on  the  government 
to  produce  corruption  under  municipal  ownership  of  monopolies 
like  gas,  electric  light,  transit,  etc.,  would  be  incomparably  less 
than  the  pressure  that  is  now  brought  to  bear  by  the  corporations. 
The  wear  and  tear  upon  the  morals  of  a  weak  municipal  govern- 
ment are  greater  by  far  when  it  comes  to  the  task  of  granting 
franchises  —  that  is  to  say,  of  making  bargains  with  private  cor- 
porations —  than  when  it  is  attempted  to  carry  out  a  business 
undertaking  directly  on  the  public  account.  Thus  jobbery  and 
rascality,  wastefulness  of  public  money,  and  bad  results  in  the 
end,  are  more  likely  to  be  the  outcome  when  the  contract  system 
is  used  in  street  cleaning,  paving  and  various  other  public  works, 
than  when  the  municipality  employs  its  own  men  to  clean  its  own 
streets,  lay  its  own  pavements,  and  do  its  own  public  work  on 
direct  municipal  account. 

Our  municipal  officials  are  elected  or  appointed  for  short  terms. 
The  city's  legal  advisers  draw  small  salaries,  and  have  no  expecta- 
tion of  remaining  in  the  public  employ  for  more  than  a  few  brief 
years  at  most.  They  hope  and  expect  after  leaving  the  public 
employ  to  find  lucrative  private  practice.  Such  practice  can 
hardly  be  obtained  except  through  the  favor  of  the  rich  corpora- 
tions. What  motive,  therefore,  could  impel  the  legal  advisers  of 
an  American  municipal  government  to  fight  desperately  for  the 
public  interest  as  against  the  great  array  of  legal  talent  represent- 
ing those  corporations  that  seek  to  gain,  to  enlarge  or  to  renew 
franchises,  on  terms  prescril:)ed  by  themselves?  In  studying 
German  contracts  one  is  always  impressed  with  a  sense  of  the 


Municipal   Functions  551 

first-class  legal,  financial  and  technical  ability  that  the  public  is 
able  to  command,  while  American  contracts  always  impress  one 
with  the  unHmited  astuteness  and  ability  of  the  gentlemen  repre- 
senting the  private  corporations. 

The  ablest  lawyers  in  all  our  cities  are  retained  by  these  private  The  ablest 
corporations.  They  are  given  fat  fees,  directorships,  stocks  and  retained 
bonds,  and  all  sorts  of  pecuniary  emoluments,  besides  political  by  cor- 
and  social  consideration.  In  return,  they  are  expected  to  use 
their  sharp  wits,  their  technical  knowledge  of  corporation  law, 
and  their  training  in  the  practical  art  of  politics,  to  get  the  better 
of  the  community  at  large,  and  thus  to  retain  or  obtain  for  the 
benefit  of  their  respective  corporations  very  valuable  public  privi- 
leges, which  ought  not  to  be  granted  at  all  except  upon  the  pay- 
ment of  their  full  value,  with  their  exercise  always  subject  to  full 
public  control.  When  municipal  franchises  and  privileges  are  to 
be  granted,  it  is  not  the  municipal  authorities  that  make  the 
terms,  but  the  private  companies.  The  laws  and  ordinances  that 
have  to  do  with  the  granting  of  these  privileges  are  carefully  pre- 
pared by  the  attorneys  of  the  corporations.  They  are  never  drafted 
by  the  legal  representatives  of  the  state  or  the  city. 

The  enormous  sums  of  money  contributed  for  purposes  of  po-  The  source 
litical  control  by  the  corporations  enjoying  municipal  supply  privi- 
leges, have  given  us  the  boss  system  in  its  present  form.  And 
the  boss  system,  which,  in  fact,  knows  no  distinction  of  political 
party,  is  fast  destroying  state  and  municipal  government  as  the 
steadfast  and  loyal  servitor,  defender  and  promoter  of  the  public 
interest.  We  find  public  and  municipal  authority  and  prestige 
weak  and  low;  while  the  authority  and  prestige  of  private  cor- 
porations engaged  in  such  services  of  municipal  supply  as  public 
illumination  and  street  transit  are  enormously  active  and  strong. 
No  such  relative  disparity  as  that  between  the  prestige  and  strength 
of  municipal  government  and  the  prestige  and  strength  of  private 
corporate  influence,  exists  anywhere  in  the  world.  Direct  owner- 
ship and  operation  would  at  least  tend  to  build  up  the  municipal 
government  on  the  side  of  its  dignity  and  prestige. 


552  American  Government  and  Politics 

Dogmas  in  The  views  that  one  encounters  in  the  United  States,  which 

presume  to  settle  all  such  practical  questions  in  advance  by  the 
recital  of  dogmas  touching  the  nature  of  government,  would  be 
deemed  the  merest  silliness  by  practical  men  in  Europe.  Those 
men  see  no  possible  reason  why  a  modern  government,  which  is, 
after  all,  nothing  but  the  organization  of  the  people  for  their  own 
benefit,  should  not  render  the  public  any  service  which  upon  care- 
ful inquiry  it  may  be  agreed  that  the  government  can  render  with 
actual  and  permanent  advantage  to  itself  and  the  citizens. 


215.   Politics  and  Public  Utilities  * 

Professor  John  R.  Commons,  as  a  member  of  the  Civic  Fed- 
eration's Commission  on  Public  Ownership,  made  an  extensive 
study  of  the  relation  of  municipal  enterprises  to  politics,  and 
prepared  a  number  of  valuable  reports  from  which  a  few  brief 
extracts  are  given  here :  — 

Politics  I  take  it  that  the  key  to  the  whole  question  of  municipal  or 

pubHc  and      private  ownership  is  the  quesdon  of  politics.     For  politics  is  simply 
private  the  question  of  getting  and  keeping  the  right  kind  of  men  to  man- 

ownership,      ^gg  ^^^  operate  the  municipal  undertakings,  or  to  supervise,  regu- 
late and  bargain  with  the  private  undertakings.     The  kinds  of 
«  business  that  we  are  dealing  with  are  essentially  monopolies  per- 

forming a  public  service,  and  are  compelled  to  make  use  of  the 
streets  which  are  public  property.  If  their  owners  are  private 
companies  they  are  compelled  to  get  their  franchises  and  all 
privileges  of  doing  business,  and  all  terms  and  conditions  of 
service  from  the  municipal  authorities.  And  in  carrying  out  their 
contract  with  the  municipality  they  are  dealing  continually  vdth 
municipal  officials.  Consequently  it  is  absurd  to  assume  that 
private  ownership  is  nonpolitical.  It  is  just  as  much  a  political 
question  to  keep  and  get  honest  or  business-like  municipal  offi- 
cials who  will  drive  good  bargains  with  private  companies  on  behalf 
of  the  public  and  then  see  that  the  bargains  are  lived  up  to,  as  it 
is  to  get  similar  officials  to  operate  a  municipal  plant.     We  do  not 


Municipal   Functions 


SS3 


escape  politics  by  resorting  to  private  ownership  —  we  only  get  a 
diiiferent  kind  of  practical  politics.  .  .  . 

This  can  be  tested  by  the  situation  of  the  Wheeling  Gas  Works. 
The  secretary  of  the  Wheeling  Gas  Trustees,  quoted  by  my  col- 
league as  testifying  to  the  political  rottenness  of  the  municipal 
gas  works,  is  the  same  man  who  testified  to  the  political  rottenness 
of  the  private  gas,  electricity  and  street  car  companies  of  that 
locality.  Instead  of  relying  on  his  statements,  I  interviewed  a 
large  number  of  officials,  politicians,  business  men,  employees 
and  others,  and  checked  up  his  statements  respecting  both  the  gas 
works  and  the  corporations.  This  shows  that  while  the  gas  works 
are  in  politics,  the  public-service  corporations  are  also  in  politics. 
The  gas  employees  take  part  in  the  primaries  of  the  Republican 
party  and  the  motormen  and  conductors  of  the  street  car  companies 
are  given  leave  of  absence  on  pay  to  work  in  the  primaries  of  both 
the  Republican  and  Democratic  parties.  Even  the  officers  of 
the  street  railway  employees'  union  take  part  in  this  kind  of  trac- 
tion politics  on  behalf  of  their  employees.  The  councilmen  and 
aldermen  nominated  in  this  way  control  the  municipal  gas  works 
and  they  control  the  franchises  and  contracts  of  the  private  com- 
panies. The  "City  Hall  Ring"  is  just  as  much  a  ring  of  the 
political  tools  of  the  private  corporations  as  it  is  a  ring  of  munic- 
ipal politicians.  To  pick  out  the  politics  of  the  gas  works  and 
not  to  see  that  it  is  bound  up  with  the  politics  of  the  private  cor- 
porations would  be  a  perverse  and  one-sided  method  of  investi- 
gation. 

In  cities  other  than  Wheeling  the  convention  system  prevails  Politics  and 
instead  of  the  direct  primaries,  and  consequently  it  was  not  found  ownership, 
that  the  wage  earners  of  the  private  companies  took  a  similar  active 
part  in  political  campaigns.  But  in  Syracuse,  Allegheny,  Indian- 
apolis and  Philadelphia,  where  municipal  employees  are  named  by 
politicians,  it  was  found  also  that  street  car,  electric,  gas  and  water 
companies  had  employed  men  on  the  recommendation  of  council- 
men,  mayor  or  chairman  of  a  political  committee.  This  practice 
was  carried  furthest  by  the  street  car  companies  of  Syracuse  and 


554 


American  Government  and  Politics 


Allegheny.  In  Chicago,  where  a  most  rigid  civil  service  lavi^  is 
enforced,  no  evidence  of  political  appointments  could  be  found  in 
the  municipal  electricity  or  water  departments  during  recent  years, 
but  men  were  hired  on  recommendation  of  aldermen  by  the  private 
electrical  companies  at  the  time  when  their  contracts  were  before 
the  council  for  renewal. 

There  is  a  distinction  which  has  been  found  in  all  of  these  cases 
between  political  appointments  in  municipal  undertakings  and 
political  appointments  by  franchise  corporations.  The  alderman 
or  mayor  who  secures  the  appointment  of  a  political  supporter  on 
a  municipal  job  exerts  himself  just  as  much  to  retain  that  man  in 
his  job  as  he  did  to  get  the  appointment  for  him.  But  both  he 
and  his  supporters  take  a  different  view  when  the  appointment  is 
secured  with  a  street  railway,  gas  or  electric  company.  The 
alderman  then  says,  "I  get  the  job  for  you,  but  you  must  make 
good ;  I  cannot  keep  the  job  for  you ;  the  company  has  the  right 
to  discharge  you  if  you  don't  do  your  work."  It  is  for  this  reason 
that  the  private  company  has  an  advantage  over  the  municipal 
management  under  the  spoils  system,  for  it  can  get  rid  of  a  political 
appointee  after  trying  him  out  and  finding  him  inefficient. 


216.    The  Labor  Problem  in  a  City  Department 

During  his  remarkable  administration  of  the  street  cleaning 
department  in  the  city  of  New  York,  Colonel  George  E.  Waring 
devised  this  plan  to  secure  harmonious  cooperation  on  the  part  of 
the  employees :  — 

In  order  to  establish  friendly  and  useful  relations  between  the 
men  in  the  working-force  and  the  officers  of  the  department,  I 
shall  be  glad  to  see  an  organization  formed  among  the  men  for 
the  discussion  of  all  matters  of  interest.  This  organization  will 
be  represented  by  five  spokesmen  in  a  "board  of  conference,"  in 
which  the  commissioner  will  be  represented  by  the  general  super- 
intendent, the  chief  clerk,  one  district  superintendent,  one  section 
foreman,  and  one  stable  foreman.  It  is  suggested  that  the  men 
who  gather  at  each  section  station  and  the  men  at  each  stable  (with 


Municipal   Functions  555 

the  boardmen  from  the  nearest  dumps)  each  elect  one  of  their 
number  to  represent  them  in  a  general  committee  of  forty-one 
(thirty-two  from  section  stations  and  nine  from  stables),  and  that 
this  general  committee  elect  the  five  spokesmen  by  whom  it  is  to 
be  represented  in  the  Board  of  Conference. 

The  general  committee  will  meet  in  a  room,  to  be  provided  for  Meetings  of 
it,  at  2  P.M.  every  Thursday,  except  the  third  Thursday  of  each  [jy^g^^^"  ^ 
month.  The  members  will  not  have  their  time  docked  for  this. 
Their  meetings  will  be  secret,  and  they  will  be  expected  to  discuss 
with  perfect  freedom  everything  connected  with  their  work,  their 
relations  with  the  commissioner  and  his  subordinates,  and  all 
questions  of  discipline,  duties,  pay,  etc.,  in  which  they  are  interested, 
or  which  their  sections,  stables,  and  dumps  may  have  submitted 
to  them. 

The  Board  of  Conference  will  meet  at  2  p.m.  on  the  third  Thurs-   Conference 
day  of  each  month,  or  as  near  to  this  date  as  the  exigencies  of  the   ^^^^  of  dif- 
work  will  allow.     The  ten  members  of  the  Board  of  Conference   ferences. 
will  be  on  a  perfect  equality.     It  will  estabUsh  its  own  organiza- 
tion and  rules  of  procedure,  and  will  elect  one  of  its  members 
permanent  chairman  and  another  permanent  secretary,  one  of 
these  to  be  chosen  from  the  five  officers,  and  another  from  the  five 
spokesmen.     It  is  hoped  that  this  board  will  be  able  to  settle  every 
question  that  may  come  up  to  the  satisfaction  of  all  concerned, 
because  most  differences  can  be  adjusted  by  discussions  in  which 
both  sides  are  fairly  represented.     Should  any  matter  arise  as  to 
which  the  board  cannot  come  to  a  substantial  agreement,  the  per- 
manent chairman  and  the  permanent  secretary  will  argue  the  case 
before  the  commissioner,  who  will  try  to  reach  a  fair  conclusion 
upon  it. 


CHAPTER  XXIX 

LOCAL    GOVERNMENT 

217.    The  New  England  Town  Meeting 

The  government  of  the  New  England  town  is  still  controlled 
by  an  open  meeting  of  the  voters  who  convene  at  stated  periods 
and  on  a  special  call  of  the  selectmen,  issued  in  the  following 
form :  — 

TOWN   WARRANT 

Commonwealth  of  Massachusetts 

Middlesex,  ss. 

To  Garritt  Barry,  a  Constable  of  the  Town  of  Arlington,  in  said 
County,  GREETING: 

In  the  name  of  the  Commonwealth  of  Massachusetts,  you  are 
hereby  required  to  notify  and  warn  the  inhabitants  of  the  Town  of 
Arlington,  who  are  qualified  to  vote  in  elections  and  town  aflfairs, 
to  assemble  in  the  Town  Hall,  on  Wednesday,  the  twenty-ninth 
day  of  April,  current,  at  8.00  o'clock,  p.m.,  then  and  there  to  act  on 
the  following  articles,  viz :  — 

Article  i.     To  choose  a  Moderator  to  preside  at  said  meeting. 

Art.  2.  To  hear  and  act  on  the  reports  of  any  Town  officers 
or  committees  heretofore  appointed. 

Art.  3.  To  see  if  the  Town  will  erect  an  addition  to  the  Locke 
School  building  substantially  in  accordance  with  the  plans  sub- 
mitted by  the  Committee  appointed  March  16,  1908,  make  an  ap- 
propriation for  the  purpose  and  determine  in  what  manner  the 
same  shall  be  raised  and  expended. 

(Inserted  at  request  of  Committee  on  New  School  House.) 


Local   Government 


557 


Art.  4.  To  see  If  the  Town  will  vote  to  enlarge  the  Locke 
School  House  lot  by  purchasing  land  on  the  northerly  side  of  the 
present  building  and  between  Park  Avenue  and  the  present  play- 
ground, make  an  appropriation  therefor  and  determine  the  manner 
in  which  the  same  shall  be  raised  and  expended,  or  take  any  other 
action  thereon. 

(Inserted  at  request  of  Committee  on  New  School  House.) 

Art.  5.  To  see  if  the  Town  \vi\\  appropriate  forty-four  dollars 
and  three  cents  to  meet  an  unpaid  bill  contracted  in  igo6  for  drain 
pipe  laid  on  Town  House  Site,  or  take  any  action  thereon. 

Art.  6.  To  see  if  the  Town  will  appropriate  nine  dollars  and 
twenty-five  cents  to  meet  an  unpaid  bill  contracted  in  1907  for 
plants  and  labor  in  the  care  of  Town  House  Lot,  or  take  any  action 
thereon. 

Art.  7.  To  see  if  the  Town  will  vote  to  carry  liability  insur- 
ance covering  the  work  of  any  departments  of  the  Town,  and 
make  an  appropriation  therefor,  the  same  to  be  expended  under 
the  direction  of  the  Selectmen,  or  take  any  action  thereon. 

Art.  8.  To  appropriate  and  raise  by  borrowing  or  otherwise 
such  sum  or  sums  of  money  as  may  be  necessary  for  all  or  any  of 
the  purposes  mentioned  in  the  foregoing  articles. 

Hereof  fail  not,  and  make  due  return  of  this  Warrant, 

[Seal]     with  your  doings  thereon,  to  the  Selectmen,  on  or  before 

said  day  and  hour  of  meeting. 

Given  under  our  hands  at  said  Arlington,  this  fourteenth  day 

of  April  in  the  year  of  our  Lord  one  thousand  nine  hundred  and 

eight. 

Frederick  S.  Mead, 
J.  Howell  Crosby, 
Walter  B.  Douglass* 


Selectmen 

of  the 

Town  of  Arlington. 


A  true  copy,  Attest: 

GARRITT  BARRY, 

Constable  of  Arlington. 


558 


American   Government  and  Politics 


A  large  portion  of  the  business  of  the  town  meeting  is  prepared 
by  committees  which  submit  reports  with  recommendations. 
This  practice  is  illustrated  by  these  extracts  from  the  town  docu- 
ments of  Arlington,  Massachusetts:  — 

The  Committee  of  Twenty-one  appointed  at  the  Town  Meeting 
held  March  i6,  1908,  has  considered  the  articles  in  the  warrant 
calling  for  appropriations  and  herewith  submits  its  report. 

Art.  3.  To  see  if  the  Town  will  erect  an  addition  to  the  Locke 
School  building  substantially  in  accordance  with  the  plans  sub- 
mitted by  the  Committee  appointed  March  16,  1908,  make  an  ap- 
propriation for  the  purpose  and  determine  in  what  manner  the  same 
shall  be  raised  and  expended. 

The  Committee  has  very  carefully  considered  the  plans  and 
estimates  as  presented  by  the  Committee  appointed  March  16, 
1908,  and  after  consultation  with  them  and  other  town  officers  and 
citizens, 

The  Committee  recommends  the  passage  of  the  following  vote :  — 
That  the  sum  of  $48,000  be  appropriated  for  the  erection  and 
furnishing  of  an  addition  to  the  Locke  School  building,  substantially 
in  accordance  with  the  plans  of  the  Committee  appointed  by  the 
Town,  March  16,  1908,  and  that  the  Town  borrow  $45,000  of  said 
sum,  and  in  payment  therefor  issue  eighteen  negotiable  notes  or 
bonds,  for  the  sum  of  $2,500  each,  one  payable  in  the  year  1909, 
and  one  in  each  of  the  seventeen  succeeding  years,  said  notes  or 
bonds  to  be  signed  by  the  Treasurer,  and  countersigned  by  the 
Selectmen,  and  to  be  designated  on  the  face  thereof,  "  Locke  School 
Addition  Loan,"  and  to  bear  interest  semi-annually  at  a  rate  not 
exceeding  four  per  centum  per  annum;  also  that  the  remaining 
$3,000  be  raised  by  general  tax;  and  that  the  Committee  appointed 
March  16,  1908,  be  authorized  and  empowered  to  supervise  and 
direct  the  work  of  the  erection  and  furnishing  of  said  building  and 
the  expenditure  of  the  sum  hereby  appropriated. 

Art.  4.  To  see  if  the  Town  will  vote  to  enlarge  the  Locke 
School  House  lot  by  purchasing  land  on  the  northerly  side  of  the 


Local   Government  559 

present  building  and  between  Park  Avenue  and  the  present  play- 
ground, make  an  appropriation  therefor  and  determine  the  manner 
in  which  the  same  shall  be  raised  and  expended,  or  take  any  other 
action  thereon. 

The  Committee  thinks  that  the  Town  should  purchase  additional 
land  adjoining  the  Locke  school,  for  playground  purposes,  as  it  is 
proposed  to  erect  the  new  building  on  part  of  the  present  play- 
ground. .  .  . 

Art.  5.     To  see  if  the  Town  will  appropriate  forty-four  dollars   ^rain  pipe 
and  three  cents  to  meet  an  unpaid  bill  contracted  in  igo6  for  drain   plants, 
pipe  laid  on  Town  House  Site,  or  take  any  action  thereon.  .  .  . 

The  Committee  learns  that  no  appropriation  was  made  which 
would  cover  the  bills  designated  in  Articles  5  and  6. 

The  Committee  recommends  the  passage  of  the  following  vote:  — 
That  the  sum  of  $44.03  be  appropriated  to  meet  an  unpaid  bill 

contracted  in  1906  for  drain  pipe  laid  on  Town  House  site,  and 

that  said  sum  be  raised  by  general  tax  in  1908. 

Art.  6.  To  see  if  the  Town  will  appropriate  nine  dollars  and 
twenty-five  cents  to  meet  an  unpaid  bill  contracted  in  1907  for 
plants  and  labor  in  the  care  of  Town  House  Lot,  or  take  any  action 
thereon. 

The  Committee  recommends  the  passage  of  the  following  vote :  — 
That  the  sum  of  $9.25  be  appropriated  to  meet  an  unpaid  bill 
contracted  in  1907  for  plants  and  labor  in  the  care  of  Town  House 
Lot  and  that  said  sum  be  raised  by  general  tax  in  1908.  .  .  . 

Respectfully  submitted, 

George  A.  Kimball,  Chairman. 
Charles  A.  Hardy,  Secretary. 


560  American  Government  and   Politics 

218.    The  Indiana  Township  * 

In  the  Western  states  it  is  the  general  practice  to  vest  town- 
ship government  in  the  hands  of  elective  officials.  Indiana  has 
sought  by  recent  statutes  to  secure  more  effective  popular  con- 
trol in  the  township  government  by  the  following  provisions:  — 

At  the  time  of  electing  township  trustees  the  voters  of  the  sev- 
eral townships  shall  elect  an  Advisory  Board,  consisting  of  three 
resident  freeholders  and  qualified  voters  of  the  township.  The 
members  of  such  Board  shall  subscribe  and  file  with  the  Trustee 
an  oath  to  faithfully  and  honestly  discharge  their  duties  as  pre- 
scribed by  law.  Their  terms  of  office  shall  be  for  two  years  from 
the  day  following  their  first  election  and  until  their  successors  are 
elected  and  quaHfied,  and  the  terms  of  office  shall  thereafter  be  for 
the  term  of  four  years  from  the  day  following  their  election  and 
until  their  successors  are  elected  and  qualified.  If  a  vacancy  oc- 
curs in  said  Board  it  shall  be  filled  by  the  remaining  members  of 
the  Board  for  the  unexpired  term.  They  shall  meet  annually  on 
the  first  Tuesday  of  September,  at  a  convenient  place  in  the  town- 
ship, notice  of  which  shall  be  given  as  hereinafter  provided.  At 
such  annual  meeting  the  members  of  such  Board  shall  elect  one  of 
their  members  chairman  for  that  year.  Two  members  shall  con- 
stitute a  quorum. 

At  such  meeting  the  Board  shall  consider  the  various  estimates 
of  township  expenditures  proposed  by  the  Township  Trustee,  and 
shall  have  power  to  concur  in  such  estimates,  or  in  any  part  thereof, 
or  to  reject  any  proposed  item,  in  whole  or  in  part.  When  they 
shall  have  determined  upon  the  estimates  and  amounts  for  which 
taxes  should  be  levied  upon  the  property  and  polls  within  said 
township  for  the  ensuing  year,  they  shall  then  determine  and  fix 
the  rates  of  taxation  upon  such  property  and  polls  as  to  the  esti- 
mated purposes  severally.  The  rates  so  determined  by  such 
Board,  they  shall  then  certify  to  the  County  Auditor,  who  shall 
place  the  same  upon  the  tax  duplicate,  and  the  same  shall  be  col- 
lected and  enforced  as  prescribed  by  law.     The  rates  so  prescribed 


Local   Government  561 

shall  be  deemed  a  levy  and  lien  upon  the  property  of  such  town- 
ship from  and  after  the  first  day  in  April  of  such  year,  and  such 
levy  shall  be  deemed  an  appropriation  for  the  specific  purposes  for 
which  such  estimates  are  fixed. 

Such  Board  shall  keep  a  record  of  their  proceedings  in  a  separate  ^^^  record 
book  to  be  furnished  by  such  Trustee,  and  kept  as  a  part  of  the  board, 
records  of  the  township,  to  be  known  as  the  Record  of  the  Advisory 
Board  of  such  township,  and  to  remain  in  the  custody  of  the  chair- 
man of  such  Board.  Said  Board  shall  elect  one  of  its  members 
Secretary  for  said  Board,  who  shall  record  the  proceedings  thereof 
at  any  meeting,  in  full,  under  the  direction  of  the  Board,  which 
shall  be  signed  before  the  Board  adjourns.  Any  meeting  may 
adjourn  from  day  to  day  till  the  business  is  completed.  .  .  . 

At  any  session  of  such  Board,  any  taxpayer  of  the  township  may  The  tax- 
appear  and  be  heard  as  to  the  advisability  of  any  estimate  or  esti-     ^^^^ 
mates  of  expenditures,  or  any  proposed  levy  of  taxes,  or  the  ap- 
proval of  the  Township  Trustee's  report,  or  any  other  matter 
being  considered  by  the  Board. 

219.    The  County  Council  * 

The  Western  form  of  county  government  through  elective 
officials  and  a  small  board  of  commissioners  has  been  character- 
ized by  a  good  deal  of  corruption  and  inefficiency,  and  Indiana  has 
attempted  to  bring  about  a  reform  by  instituting  county  councils :  — 

That  within  twenty  days  after  the  taking  efifect  of  this  act,  the  The  elec- 
Board  of  County  Commissioners  of  each  county  shall  meet  and  ^°^^^ 
make  and  spread  on  record  an  order  dividing  such  county  into  four 
councilmanic  districts  of  contiguous  territory,  as  nearly  equal  in 
population  as  possible:  Provided,  That  no  township  shall  be  di- 
vided in  forming  such  districts.  The  members  of  the  county 
council  shall  consist  of  one  councilman  from  each  councilmanic 
district,  to  be  elected  by  the  voters  of  such  district,  and  three  coun- 
cilmen  at  large,  to  be  elected  by  the  voters  of  the  whole  county. 

The  power  of  fixing  the  rate  of  taxation  for  county  purposes,  and   ^^  gxinc  the 
for  all  purposes  where  the  rate  not  fixed  by  law  is  required  to  be   tax  rate. 


562 


American  Government  and  Politics 


The  prep- 
aration of 
estimates. 


Estimates 
open  to  in- 
spection. 


uniform  throughout  the  county,  shall  be  vested  exclusively  in  the 
county  council;  and  neither  the  board  of  county  commissioners, 
nor  any  county  officer  or  officers,  shall  have  power  to  fix  the  rate  for 
any  such  purpose  whatever.  The  power  of  making  appropriations 
of  money  to  be  paid  out  of  the  county  treasury  shall  be  vested  ex- 
clusively in  such  council,  and,  except  as  in  this  act  otherwise  ex- 
pressly provided,  no  money  shall  be  drawn  from  such  treasury  but 
in  pursuance  of  appropriations  so  made. 

Before  the  Thursday  following  the  first  Monday  in  August,  of 
each  year,  every  county  officer  shall  prepare  an  estimate,  itemized 
with  as  great  particularity  as  possible,  of  the  amount  of  money 
required  for  his  office  for  the  ensuing  calendar  year;  every  clerk 
of  a  court  or  courts  of  a  county  shall  prepare  a  separate  similarly 
itemized  estimate  of  the  amount  required  for  such  year  for  each 
court  of  which  he  is  clerk,  and  when  a  court  consists  of  two  or 
more  judges  who  preside  in  separate  rooms,  or  over  separate  divi- 
sions of  the  court,  a  separate  similarly  itemized  estimate  for  court 
expenses  in  each  room  so  presided  in ;  and  every  board  of  county 
commissioners  shall  prepare  a  separate  and  similarly  itemized 
estimate  of  all  money  to  be  drawn  by  the  members  of  said  board, 
and  of  aU  expenditures  to  be  made  by  the  board,  or  pursuant  to  its 
order,  during  such  year  for  any  and  all  purposes  whatever.  To 
each  of  such  estimates  there  shall  be  appended  a  certificate  verified 
by  the  oath  of  the  officer  preparing  the  same  to  the  eflfect  that  in 
his  opinion  the  amount  fixed  in  each  item  will  be  required  for  the 
purpose  indicated  thereby. 

All  of  the  above  provided  for  estimates  when  so  prepared,  other 
than  the  one  prepared  by  the  county  auditor,  shall  be  presented  to 
said  auditor  on  or  before  the  Wednesday  following  the  first  Mon- 
day in  August,  and  they,  together  with  the  one  so  prepared  by  him, 
shall  be  kept  on  file  in  his  office  subject  to  inspection  by  any  tax- 
payer of  the  county  from  the  time  they  are  filed.  The  county 
auditor  shall  give  notice  by  publication  one  time  in  each  of  two 
leading  newspapers  of  general  circulation,  printed  and  published 
in  the  county,  if  there  be  such,  representing  respectively  the  two 


Local   Government  563 

political  parties  casting  the  highest  number  of  votes  in  such  county 
at  the  last  preceding  general  election,  of  the  aggregate  amount  of 
each  of  said  estimates  before  their  presentation  to  the  council. 

At  the  regular  annual  meeting  of  the  council  on  the  first  Tuesday  Presentation 
after  the  first  Monday  in  September,  the  auditor  shall  present  all  ^^  estimates. 
said  estimates  thereto,  and  may  make  such  recommendation  to  the 
council  with  reference  to  the  estimates  as  may  to  him  seem  proper. 
And  it  shall  be  his  duty  before  such  meeting  of  the  council  to  pre- 
pare an  ordinance  in  proper  form,  to  be  adopted  by  the  council, 
fixing  the  rate  of  taxation  for  the  taxes  to  be  collected  in  the  ensuing 
calendar  year,  and  also  an  ordinance  making  an  appropriation  by 
items  for  such  calendar  year  for  the  various  purposes  for  which  all 
of  the  above  estimates  are  required.  The  council  at  said  meeting 
shall  act  upon  such  ordinances,  and  by  adopting  the  same  or 
amended  or  substituted  ordinances  fix  the  tax  rate  within  the  limit 
prescribed  by  law,  and  make  the  appropriations.  Each  ordinance 
shall  be  read  upon  at  least  two  separate  days  before  its  final  adop- 
tion. The  council  shall  have  full  power  to  require  any  estimate 
not  sufficiently  itemized  to  be  so  itemized  by  the  person  who  pre- 
pared the  same,  and  to  appropriate  for  any  purpose  a  sum  not 
greater  than  that  estimated  in  the  item  therefor.  By  a  three- 
fourths  vote  of  the  council,  and  not  otherwise,  an  appropriation 
may  be  made  for  an  item  not  contained  in  any  estimate  or  for  a 
greater  amount  than  that  named  in  any  item  of  an  estimate. 


220.   Centralization  of  Administrative  Supervision 

This  document  illustrates  the  exercise  of  the  power  of  removal 
by  the  governor  of  the  state  of  New  York :  — 

State  of  New  York, 

Executive  Chamber. 

In  the  matter  of  the  charges  preferred  against  Thomas  Hutson, 
county  treasurer  of  the  county  of  Chautauqua  —  Order  of 
Removal. 


564 


American   Government  and   Politics 


The  charges 
and  the 
hearing  in 
the  case. 


Charges  of  misconduct  and  malfeasance  in  office  having  been 
heretofore  preferred  by  Herman  Sixbey  and  Seth  Scriven  against 
Thomas  Hutson  the  county  treasurer  of  the  county  of  Chautauqua 
and  a  copy  of  the  said  charges  ha\ang  been  served  on  the  said 
Hutson  and  an  opportunity  having  been  given  him  to  be  heard 
in  his  defense,  and  he  having  filed  an  answer  denying  any  mis- 
conduct or  neglect  of  duty,  and  an  order  ha^^ng  been  made  by 
me  appointing  Winfield  S.  Thrasher  of  the  village  of  Dayton, 
county  of  Cattaraugus,  commissioner  to  take  the  testimony  and 
the  examination  of  witnesses  as  to  the  truth  of  the  said  charges 
and  to  report  the  same  to  me  and  also  the  material  facts  which 
he  deems  to  be  established  by  the  evidence,  and  the  said  commis- 
sioner ha\nng  taken  the  testimony  relating  to  such  charges  and 
in  refutation  thereof,  and  his  report  bearing  date  October  13, 
1899,  and  the  evidence  taken  by  him,  having  been  duly  filed,  and 
it  appearing  to  me  after  an  examination  of  the  same  that  certain 
of  the  said  charges  are  true,  —  that  in  violation  of  law  and  of  his 
duty  as  treasurer  he  neglected  to  report  to  the  board  of  super- 
visors of  Chautauqua  county  the  amount  of  interest  received  by 
him  on  county  funds ;  that  he  accepted  a  present  of  $100  from  the 
Fredonia  National  Bank,  one  of  the  banks  in  which  the  funds  of 
the  county  were  deposited  by  him;  that  the  aggregate  amount 
of  said  interest  and  present,  to  wit,  $1695.92  was  kept  and  re- 
tained by  him  as  his  own  property  until  after  the  commencement 
of  this  proceeding,  when  said  amount  was  paid  by  him  into  the 
treasury  of  the  county;  it  is  therefore 

Ordered  that  the  said  Thomas  Hutson  be  and  he  hereby  is 
removed  from  the  said  office  of  county  treasurer  of  the  county  of 
Chautauqua. 

Given  under  my  hand  and  the  Privy  Seal  of  the  State  at  the 
Capitol  in  the  city  of  Albany  this  seventeenth  day  of  October  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety-nine. 

Theodore  Roosevelt. 
By  the  Governor: 

William  J.  Youngs, 

Secretary  to  the  Governor. 


Local  Government  ^6^ 

221.  Central  Control  of  Local  Finances 

One  of  the  most  serious  problems  of  local  government  is  the 
control  of  the  financial  operations  of  local  ofificers,  especially  where 
one  party  remains  in  power  from  decade  to  decade.  Ohio  en- 
deavors to  maintain  publicity  and  accountability  throughout  the 
state  by  vesting  financial  supervision  in  a  central  bureau :  — 

There  is  hereby  established  in  the  department  of  the  auditor  The 
of  state,  a  bureau  to  be  known  as  the  bureau  of  inspection  and  infection, 
supervision  of  public  offices;  the  principal  officer  of  said  bureau 
shall  be  known  as  the  chief  inspector  and  supervisor  of  public 
offices,  and  as  such  chief  inspector,  shall  appoint  not  exceeding 
three  deputies,  no  more  than  two  of  whom  shall  be  of  the  same 
political  party,  who  shall  each  receive  a  salary  not  exceeding 
two  thousand  dollars  per  annum,  and  a  clerk  who  shall  receive 
a  salary  not  exceeding  fifteen  hundred  dollars  per  annum,  and 
in  addition  thereto  an  allowance  for  all  necessary  travelling  and 
hotel  expenses  while  absent  from  their  places  of  residence  in  the 
discharge  of  their  official  duties.  .  .  . 

The  auditor  of  state  through  said  bureau  shall  formulate,  pre-  The 
scribe  and  install  a  system  of  accounting  and  reporting,  in  con-  accoi^tint? 
formity  with  the  provisions  of  this  act,  that  shall  be  uniform  for 
every  public  office  and  every  public  account  of  the  same  class, 
and  which  shall  exhibit  true  accounts  and  detailed  statements  of 
funds  collected,  received  and  expended  for  account  of  the  public 
for  any  purpose  whatever,  and  by  all  public  officers,  employes  or 
other  persons,  such  accounts  to  show  the  receipt,  use  and  dis- 
position of  all  public  property,  and  the  income,  if  any,  derived 
therefrom,  and  of  all  sources  of  public  income  and  amounts  due 
and  received  from  each  source,  all  receipts,  vouchers  and  other 
documents  kept,  or  that  may  be  required  to  be  kept,  necessary  to 
isolate  and  prove  the  validity  of  every  transaction,  and  all  state- 
ments and  reports,  made  or  required  to  be  made,  for  the  internal 
administration  of  the  office  to  which  they  pertain,  and  all  reports 
published,  or  that  may  be  required  to  be  published,  for  the  in- 


accounting. 


566  American  Government  and   Politics 

formation  of  the  people,  regarding  any  and   all  details  of  the 
financial  administration  of  public  affairs.  .  .  . 
Inspection  The  auditor  of  state,  a  deputy  inspector  and  supervisor,  and 

of  accounts.  .  1     n  1  1       1  •         i<-        1 

every  state  examiner  shall  have  power  by  himself  or  by  any  person 
legally  appointed  to  perform  the  service,  and  shall  make  such 
examination  at  least  once  a  year.  On  every  such  examination 
inquiry  shall  be  made  as  to  the  financial  conditions  and  resources 
of  the  taxing  district;  whether  the  constitution  and  statutory 
laws  of  the  state,  the  ordinances  and  orders  of  the  taxing  district 
and  the  requirements  of  the  bureau  of  inspection  and  supervision 
of  public  offices  have  been  properly  complied  with;  and  into  the 
methods  and  accuracy  of  the  accounts  and  reports. 


CHAPTER  XXX 

POLITICS   AND   GOVERNMENT 

222.    Tlie  Operations  of  a  Municipal  Boss 

This  testimony  given  by  Mr.  Croker  during  an  investigation 
into  the  offices  and  departments  of  New  York  City  in  1899  in- 
dicates the  methods  employed  by  a  political  dictator  in  operating 
party  machinery.  It  also  affords  an  insight  into  the  character 
and  outlook  of  one  of  the  most  striking  municipal  leaders  of  recent 
times. 

Q.   But  you  are  simply  the  leader  of  the  Tammany  Democ-   A  little  by- 

-,       A      \T  •  J    -i  i  u  play  between 

racy,  are  you?     A.    Yes,  sir,  you  say  so  and  it  must  be  so.  examiner 

Q.   You  admit  it?    A.   Yes.     I  don't  deny  that.  and  witness. 

Q.  There  is  a  difference  between  the  Tammany  Society.  A.  It 
is  not  necessary  to  bring  all  that  up,  I  should  not  imagine,  be- 
cause everybody  knows  what  they  are.  There  is  no  use  playing 
to  the  galleries. 

Mr.  Moss.     We  are  making  the  record. 

The  Witness.  Give  good  straight  talk  and  let  us  get  through. 
There  is  no  use  making  speeches.  They  all  know  everything  you 
have  said  here.  I  am  the  leader  of  the  party  and  I  acknowledge 
it,  and  all  these  people  are  my  friends  and  I  am  going  to  stick  to 
them  all  the  time.  I  don't  shy  away  from  them.  (Applause  from 
the  audience.) 

Mr.  Moss.  That  is  right.  I  hope  the  chairman  will  allow 
that  once  in  a  while. 

The  Witness.  No,  we  don't  want  it.  Just  give  me  good 
straight  talk  and  let  us  settle  it.  That  is  all  unnecessary.  All 
those  gentlemen  know  that  I  am  considered  the  leader,  and  all 
those  gentlemen  are  my  friends,  and  yet  you  have  taken  a  half 
hour  up  for  nothing.     Now,  what  is  the  use? 

567 


568 


American   Government  and   Politics 


Mr.  Croker 
and  his 
friends. 


City  officials 
to  be  con- 
trolled by  the 
organization. 


Tammany 
officials  are 
city  officials. 


Mr.  Moss.  We  will  try  to  accommodate  you.  I  do  not  want 
to  make  this  examination  any  more  lengthy  or  uncomfortable. 

The  Witness.  You  must  pardon  me  now  for  saying  that.  I 
am  only  saying  that  for  both  of  us.  You  have  got  quite  a  little 
time,  and  I  have  got  a  little  time  and  we  want  to  make  good  use 
of  it. 

Q.  You  say  these  gentlemen  ^  whom  I  have  mentioned  are 
your  friends,  do  you  ?     A .   Yes,  sir. 

Q.  You  are  their  leader  and  have  discussed  together  the  politi- 
cal matters  of  the  city,  have  you  not?     A.    Yes,  sir. 

Q.    You  give  certain  directions  and  advice?    A.   Yes,  sir. 

Q.   And  they  follow  it?     A.    Some  do. 

Q.   And  when  they  do  not?     A.    Some  do  and  some  don't. 

Q.  That  is  the  only  way  a  political  party  can  be  made  prac- 
tically successful,  is  it  not?     A.    That  is  the  way. 

Q.    It  does  not  do  to  have  divided  councils  at  the  head,  does  it? 

A.   No,  not  very  well. 

Q.  For  that  reason,  when  the  party  is  dominant  the  men  who 
are  put  into  the  city  offices  to  administer  the  affairs  of  the  city 
ought  to  be  in  such  relation  with  the  head  that  they  will  do  what 
is  generally  considered  by  the  organization  to  be  the  proper  thing? 
A.   We  agree  on  that.     We  believe  it  is  right,  yes. 

Q.  The  leader  of  that  organization  is  always  looked  to  for  his 
advice,  his  judgment  and  his  direction,  is  he  not?  A.  Not  always. 
Often  things  are  done  that  the  leader  don't  know  anything  about. 

Q.  But  there  are  so  many  things  that  you  cannot  be  expected 
to  know  and  understand  them  all.  I  agree  on  that.  A.  There 
are  lots  of  things  done  that  I  am  not  accountable  for  at  all. 

Q.  I  want  to  read  the  names  of  the  Sachems.^  We  are  not  only 
talking  but  we  have  got  to  make  a  record  that  is  to  go  to  the  Legis- 
lature and  I  want  it  straight.  It  is  stated  that  the  Tammany 
Sachems  now  are  Thomas  L.  Feitner,  President  of  the  Board  of 
Tax  Commissioners,  Grand  Sachem;  John  Whalen,  Corpora- 
tion Counsel;    John  F.  Carroll,  the  assistant  or  deputy  of  your- 

*  Men  prominent  in  Tammany  Democracy.       ^  Officers  in  Tammany  Hall. 


Politics  and  Government  569 

self;  William  Astor  Chanler,  Congressman  elect;  John  J.  Scan- 
nell,  Fire  Commissioner;  Charles  F.  Murphy,  President  of  the 
Board  of  Health;  Randolph  Guggenheimer,  President  of  the 
Council;  Maurice  Featherson,  State  Senator;  Major  Asa  Bird 
Gardiner,  District  Attorney;  John  Kelly;  George  C.  Clausen, 
President  of  the  Park  Commission;  John  Fox;  Thomas  J.  Dunn, 
Sheriff;  Secretary,  Thomas  F.  Smith,  Clerk  of  the  City  Court; 
Sagamore,  J.  T.  Nagle;  Wiskinskie,  John  A.  Boyle.  Is  that  list 
substantially  correct?    A.   Yes,  sir. 

Q.  And  all  or  nearly  all  of  those  men  hold  prominent  positions 
now  in  the  city  government?     A.    Yes,  sir. 

Q.    Is  it  not  a  fact  that  upon  the  success  of  the  Tammany  ticket   How  the 
in  the  election  of  the  fall  of  1897  there  was  a  gathering  at  Lake-   g^^J  ^^^  ^^ 
wood  of  the  important  members  of  the  Tammany  organization    city  oflSces. 
including  yourself,  at  which  was  discussed  the  offices  that  were 
to  be  filled  and  the  candidates  for  these  offices?     Is  not  that  so? 
A.    Oh,  yes. 

Q.  And  at  that  conference  at  Lakewood  practically  all  of  the 
important  officers  of  the  city  and  county  government  were  selected, 
Were  they  not?     A.    Well,  pretty  much. 

Q.  And  your  advice  was  asked  upon  them  all,  was  it  not? 
A.  Mostly  all,  yes,  sir. 

Q.  Do  you  recall  any  member  or  any  important  officer  of  the 
city  government  now  who  was  not  discussed  with  you  and  your 
advice  asked  about  him?     A.   No,  I  do  not. 

Q.  These  men  were  all  agreeable  to  you,  were  they  not? 
A.  Yes,  sir. 

Q.  And  most  of  them  were  your  personal  selection,  were  they 
not?  A.  Well,  no,  they  were  not;  not  my  personal  selection  at 
all. 

Q.  But  the  selection  of  yourself  or  of  your  immediate  associates? 
A.    Yes,  sir. 

Q.  And  they  were  selected  partly  because  of  their  presumed 
ability  to  fill  the  offices  and  partly  because  of  the  loyalty  they  had 
to  the  organization  which  had  triumphed?     A.    Yes,  sir. 


570 


American   Government  and  Politics 


Q.  And  in  filling  those  offices  you  looked  directly  to  the  prac- 
tical questions  of  sustaining  the  strength  of  the  successful  organiza- 
tion, did  you  not?     A.   Yes,  sir.  .  .  . 

Q.  Now  I  ask  you  this  question;  we  notice  that  at  the  dinner 
the  other  night,  the  Democratic  Club  dinner,  there  were  no  sena- 
tors present;  no  State  senators.  There  were  not,  were  there? 
A.   No,  sir. 

Q.  Why  not?  A.  Because  their  place  was  in  Albany,  at  their 
duty. 

Q.   And  you  told  them  so,  didn't  you?    A.   Yes,  sir. 

Q.   They  obeyed  you?     A.    I  think  they  did. 

Q.  They  denied  themselves  the  patriotic  privilege  of  honoring 
the  memory  of  Jefferson  and  eating  a  good  dinner  because  you 
told  them  to  stay  in  Albany?  A.  Because  they  owed  it  to  their 
State  and  their  duty. 

Q.  Because  you  told  them?  A.  Because  they  owed  it  to  their 
State  and  their  duty. 

Q.  Do  you  suppose  they  would  have  denied  themselves  the 
patriotic  privilege  of  honoring  Jefferson  and  the  pleasure  of  eating 
a  good  dinner  in  his  honor  if  somebody  had  not  directed  them  to 
forsake  these  pleasures  and  patriotic  duties?  A.  They  might 
not  have  come  at  all,  without  telling  them. 

Q.  But  you  wanted  to  make  sure,  and  they  obeyed  you? 
A.    Yes,  sir. 

Q.   And  so  you  lost  the  pleasure  of  their  company  and  they 
lost  the  pleasure  of  your  company,  and  we  all  lost  their  oratory? 
A.   In  the  discharge  of  their  duty;   yes,  sir.      I  will  stand  by* 
that. 

Q.  It  is  a  fact  then  that  you  do  control  the  physical  move- 
ments of  the  members  of  the  Senate  on  your  side  of  the  House? 
A.    What  kind  of  movements? 

Q.    Physical    movements?     A.    Physical    movements. 

Q.  Physical  movements;  yes,  sir,  do  you?  A.  I  don't  know 
what  you  call  physical  movements;  what  do  you  mean  by  that? 
Let  me  know  the  meaning  of  that. 


Politics  and   Government  571 

Q.  The  movements  of  their  bodies?  A.  No,  I  don't  control 
their  physical  movements. 

Q.  You  prevented  them  from  coming  down  from  Albany? 
A.   They  can  move  their  bodies  wherever  they  like. 

Q.  But  they  could  not  move  them  into  the  Metropolitan  Opera 
House  at  that  dinner?    A.   They  could  if  they  wished. 

Q.  They  were  advised  not  to?  A.  They  took  the  advice,  I  hope. 
I  hope  they  did.     Probably  they  did  on  their  own  account  too. 

Q.    Yes.     Have  you  given  any  instructions  or   any  advice    to   A  recal- 
any  one  concerning  a  certain  Mr.  Reddington,  an  assemblyman?  "^'"^"'^'^s- 

■^  °  o        y  J  semblyman 

A.   Yes,  I  have.  repri- 

Q.   What  was  that  advice,  and  what  were  those  instructions?  ™3,nded. 
A.   That  he  ought  to  be  reprimanded  for  voting  for  the  Astoria, 
gas  grab. 

Q.  And  you  did  that  as  the  leader  of  the  party,  didn't  you? 
A.   Yes,  sir. 

Q.  And  it  is  your  purpose  to  exercise  your  position  in  inflicting 
discipline  upon  him  as  the  representative  of  your  organization? 
A.   That  is  left  to  the  district. 

Q.  But  you  have  advised  it?  A.  I  said  it  should  be  done, 
or  ought  to  be  done,  yes. 

Q.  Then  your  organization  and  you  don't  leave  members  of 
the  Legislature  entirely  free  to  vote  as  they  please  upon  matters 
that  come  up,  but  you  observe  them  and  reprimand  them  and 
advise  them  to  do  whatever  is  necessary  to  get  them  to  vote  as 
you  and  your  associates  think  they  should,  don't  you?  A.  We 
expect  them  to  stand  by  party  measures.  .  .  . 

Q.  Mr.  Croker,  did  you  sell  Manhattan  stock  short  prior  to  Municipal 
the  assault  on  the  Manhattan  by  the  city?  A.  That  is  my  private  ^" 
affair.  gain. 

Q.  Did  you  not  have  quantities  of  that  stock,  in  which  you 
were  interested,  in  brokers'  hands  on  Broad  Street?  A.  I  will 
answer  all  that  now  to  satisfy  you.  I  never  sold  it  short,  and 
got  no  stock  at  all. 

Q.   I  thank  you,  now  we  have  an  answer  on  that;    what  you 


572 


American   Government  and  Politics 


had  was  in  somebody  else's  name,  wasn't  it?  A.  No  one's  name 
at  all. 

Q.  You  have  no  connection  with  Mr.  Freedman,  have  you,  in 
financial  matters?    A.    Yes. 

Q.  He  was  not  handling  it  for  you?  A.  It  was  all  private 
business. 

Q.  Working  for  your  pocket  all  the  time?  A.  Yes,  sir;  as 
you  are  working  for  criminals  in  New  York. 

Q.   Just  as  I  am  after  criminals ?    A.   Yes. 

Q.  I  take  your  language?  A.  Every  man  in  New  York  is 
working  for  his  pocket. 


223.  Corporations  in  Politics^ 

In  1893  charges  were  brought  against  the  Sugar  Trust  to  the 
effect  that  it  had  been  exerting  improper  influences  on  the  process 
of  tariff  revision,  and  the  United  States  Senate  made  an  inquest 
into  the  truth  of  the  matter.  In  the  course  of  his  statement 
before  the  investigating  committee,  Mr.  Havemeyer  described  the 
pohtical  operations  of  the  Sugar  Refining  Company:  — 

Senator  Allen.     Had  you  or  the  sugar  refining  company  con- 
tributed anything  to  the  campaign  fund  in  New  York  last  year  ? 
Mr.  Havemeyer.    The  Democratic  campaign  fund? 
Yes. 

Do  you  mean  the  national  campaign  fund  ? 
The  Democratic    State   campaign   fund   of 


Senator  Allen. 
Mr.  Havemeyer. 
Senator  Allen. 
last  year? 
Mr.  Havemeyer. 
Senator  Allen. 
Mr.  Havemeyer. 
Senator  Allen. 
Mr.  Havemeyer. 


I  will  have  to  answer  that  in  the  afl&rmative. 
Relatively,  to  what  amount  ? 
To  a  moderate  amount. 
Have  you  any  objection  to  stating  what  it  was  ? 
I  will  have  to  look  that  up.     I  have  not 
charged  my  mind  with  it. 

Senator   Allen.     Did  you   also  contribute  something  to  the 
Republican  campaign  fund? 
Mr.  Havemeyer.     I  will  have  to  look  that  up. 


Politics  and  Government  573 

Senator  Allen.     What  is  your  recollection  as  to  the  fact  ? 

Mr.  Havemeyer.     The  local  fund? 

Senator  Allen.  Yes;  the  State  fund.  That  is,  for  the  State 
campaign. 

Mr.  Havemeyer.  We  always  do  that.  I  have  not  the  amount 
in  my  mind. 

Senator  Allen.  So  you  contributed  as  a  matter  of  fact  to  both 
parties  ? 

Mr.  Havemeyer.  I  will  not  say  I  contributed  to  the  Republi- 
can party  without  refreshing  my  memory. 

Senator  Allen.  Is  it  to  your  best  recollection  that  you  did 
contribute  to  both  the  Repubhcan  and  Democratic  campaign  funds 
in  New  York? 

Mr.  Havemeyer.  I  do  not  think  we  did  contribute  to  the 
Repubhcan. 

Senator  Allen.     In  1892  did  you  contribute  to  either  party? 

Mr.  Havemeyer.     The  local  parties? 

Senator  Allen.    The  national  parties? 

Mr.  Havemeyer.  No,  sir ;  but  always  to  the  local  parties.  Let 
that  be  distinct.  .  .  . 

Mr.  Havemeyer.     Contributions  to  local  political  organizations  Contrlbu- 
have  always  been  made  by  corporations,  before  the  trust  and  by  *'°"^  *f    , 
the  trust  and  the  American  Sugar  Refining  Company,  and  no  are  proper, 
doubt  will  continue  to  be.     It  is  a  very  suitable  and  proper  thing 
to  do. 

Senator  Allen.    You  say  it  is  a  suitable  and  proper  thing  to  do  ? 

Mr.  Havemeyer.     Yes,  sir. 

Senator  Allen.  Why  should  the  American  Sugar  Refining 
Company  contribute  to  either  of  the  political  parties  in  the  State 
of  New  York? 

Mr.  Havemeyer.  We  have  large  interests  in  this  State ;  police 
protection  and  fire  protection.  They  need  everything  that  the 
city  furnishes  and  gives,  and  they  have  to  support  these  things. 
Every  individual  and  corporation  and  firm,  trust,  or  whatever 
you  call  it,  does  these  things,  and  we  do  them. 


574 


American   Government  and   Politics 


Local  pro- 
tection in 
return  for 
contribu- 
tions. 


The  domi- 
nant party 
gets  the 
money. 


You  expect  protection  from  whichever  party 

Yes,  sir;  local  protection. 
Do  you  expect  that  simply  from  the  Demo- 


Senator  Allen.  And  you  contribute  to  both  parties  with  the 
expectation  of  whichever  party  succeeds  your  interests  will  be 
guarded  ? 

Mr.  Havemeyer.  We  have  a  good  deal  of  local  protection  for 
our  contribution. 

Senator  Allen. 
succeeds  ? 

Mr.  Havemeyer. 

Senator  Allen. 
cratic  party? 

Mr.  Havemeyer.  We  expect  protection  from  the  police  and 
fire  department,  and  anything  that  the  State  and  local  organiza- 
tions can  give. 

Senator  Allen.  Therefore  you  feel  at  liberty  to  contribute  to 
both  parties? 

Mr.  Havemeyer.  It  depends.  In  the  State  of  New  York  where 
the  Democratic  majority  is  between  40,000  and  50,000,  we  throw 
it  their  way.  In  the  State  of  Massachusetts,  where  the  Republican 
party  is  doubtful,  they  probably  have  the  call.  .  .  . 

AIr.  Havemeyer.  It  is  my  impression  that  wherever  there  is 
a  dominant  party,  wherever  the  majority  is  very  large,  that  is 
the  party  that  gets  the  contribution,  because  that  is  the  party  which 
controls  the  local  matters. 

Senator  Allen.  Then,  the  sugar  trust  is  a  Democrat  in  a 
Democratic  State,  and  a  Republican  in  a  Republican  State? 

]Mr.  Havemeyer.  As  far  as  local  matters  are  concerned,  I  think 
that  is  about  it. 

Senator  Allen.  In  the  State  of  Maine,  you  control  the  refinery 
at  Portland,  do  you  not? 

Mr.  Havemeyer.  That  is  defunct.  We  do  not  give  anything 
to  the  State  of  Maine.  .  .  . 

Senator  Allen.  And  this  money  that  you  contribute  to  these 
different  parties  for  campaign  purposes. 

Mr.  Havemeyer.     Local  campaign  purposes. 

Senator   Allen.     Certainly ;    local  campaign  purposes  —  that 


Politics  and   Government  575 

money  comes  out  of  the  corporation  of  the  sugar  refining  com-   Where  the 

-,  money 

Pany?  comes  from. 

Mr.  Havemeyer.     Yes,  sir. 

Senator  Allen.     And  is  a  part  of  the  expenses  of  the  company  ? 

Mr.  Havemeyer.     Yes,  sir. 

Senator  Allen.     Charged  up  on  your  books  as  expenses  ? 

Mr.  Havemeyer.     Yes,  sir. 

Senator  Allen.  And  the  books  of  your  refining  company  would 
show  the  amount  of  money  which  you  have  annually  contributed 
to  the  respective  political  parties  and  the  State  in  which  it  was 
contributed,  and  the  party  to  which  it  was  contributed,  would  they 
not? 

Mr.  Havemeyer.     I  don't  think  it  shows  in  that  form. 

Senator  Allen.     How  would  it  show  —  as  so  much  money? 

Mr.  Havemeyer.  It  would  show  that  a  payment  had  been 
made  and  that  payment  would  have  to  be  explained  by  the  party 
who  made  it. 

Senator  Allen.     Made  to  some  particular  individual  ? 

Mr.  Havemeyer.     Yes,  sir. 

Senator  Allen.  He  would  have  to  render  an  account,  which 
would  not  go  upon  the  books,  as  to  the  manner  in  which  that 
money  was  expended? 

Mr.  Havemeyer.  He  would  have  to  expend  it  in  conformity 
with  the  instructions  of  the  board. 

Senator  Allen.  The  manner  in  which  he  did  expend  it  actually 
would  not  appear  upon  your  books? 

Mr.   Havemeyer.     No,  sir. 

Senator  Allen.     Have  you  been  in  the  habit  of  expending  any  Legislation 
money  in  connection  with  State  legislatures?  fluenced. 

Mr.  Havemeyer.  You  mean  in  the  campaign  of  the  State  ? 
You  do  not  mean  in  the  legislature  itself? 

Senator  Allen.     I  mean  in  influencing  State  legislation. 

Mr.  Havemeyer.  Oh,  never.  We  have  contributed  to  local 
campaign  parties,  but  never  in  the  way  of  influencing  legislation, 
and  we  never  contribute  with  any  obligation.  .  .  . 


576 


American  Government  and  Politics 


Senator  Allen.  So  far  as  I  am  concerned,  I  request  of  the 
witness,  Mr.  Havemeyer,  to  produce  full  data  as  to  all  money 
contributed  by  the  American  Sugar  Refining  Company,  or  any  of 
its  officers,  on  its  account  or  in  its  interest,  in  the  different  States 
of  the  Union  in  1892  or  1893,  for  political  purposes,  to  any  political 
party,  whether  national.  State,  or  local. 

Mr.  Havemeyer.  While  I  am  perfectly  willing  to  answer  any 
material  matters,  under  advice  of  counsel  I  decline  to  answer 
about  outside  matters.  I  decline  to  answer  about  local  contri- 
butions. I  know  of  nothing  given  to  the  national  campaign. 
There  exists  no  bargain  of  any  nature,  and  we  never  claimed  that 
the  company  was  entitled  to  anything  except  what  its  merits 
required. 

The  Chairman.  Is  that  the  answer  you  desire  to  make  to  this 
question  ? 

Mr.  Havemeyer.     That  is  the  answer. 

Senator  Allen.  Since  your  examination  yesterday  you  have 
consulted  counsel  as  to  the  propriety  of  answering  questions  with 
reference  to  divulging  the  amount  of  money  that  you  paid  for 
election  purposes  in  the  different  States? 

Mr.  Havemeyer.     As  to  making  any  answer. 

Senator  Allen.  And  in  declining  to  answer  the  question  put 
to  you  I  observed  that  you  read  your  answer  from  a  piece  of 
paper  ? 


Mr.  Havemeyer, 
Senator  Allen. 
counsel  ? 
Mr.  Havemeyer 
Senator  Allen. 
Mr.  Havemeyer. 
Senator  Allen. 


Yes,  sir. 
Was  that  answer  prepared  by  you  or  by  your 


By  me. 

Under  the  direction  of  your  counsel? 

No,  sir;   under  the  advice  of  counsel. 

I  do  understand  you,  however,  to  say  and 
repeat,  that  in  States  where  you  have  a  financial  interest,  at  least 
where  the  sugar  refining  company  has  an  interest  as  refiners,  you 
do  contribute  to  either  the  Democratic  or  Republican  party  as 
one  or  the  other  may  be  in  the  ascendancy  in  that  State  ? 


Politics  and  Government  577 

Mr.  Havemeyer.  We  do  for  local  and  State  purposes,  but  not 
national. 

Senator  Allen.  You  never  contribute  to  the  campaign  fund 
of  a  party  in  the  minority? 

Mr.  Havemeyer.     We  may;    I  will  not  say  we  do  not. 

Senator  Allen.  Your  policy,  however,  is  to  stand  in  with  the 
ruling  power? 

Mr.  Havemeyer.  Not  to  "stand  in"  but  to  contribute  to  the 
campaign  expenses  of  that  party,  for  the  reason  that  they,  being 
in  power  and  control,  could  give  us  the  protection  we  should 
have. 

Senator  Allen.    And  by  that  means  you  placate  — 

Mr.  Havemeyer.  Oh,  no;  there  is  no  placation  or  obhgation 
at  all;  nothing  more  than  we  consider  the  proper  thing  to  do; 
everybody  does  it. 

Senator  Allen.  Does  any  other  corporation  in  these  same 
States  do  the  same  thing,  that  you  know? 

Mr.  Havemeyer.  I  understand  every  individual,  corporation, 
and  firm  in  existence  does  it  in  their  respective  States. 

Senator  Allen.     So  the  American  Sugar  Refining  Company's  ^^^ 

...  f  .  .,       •  1  •1-1  "politics  of 

politics,  so  far  as  its  contributions  to  the  campaign  fund  are  con-  business." 
cerned,  is  controlled  by  the  political  complexion  of  tne  State  in 
which  it  happens  to  have  a  particular  refinery?  , 

Mr.  Havemeyer.  The  American  Sugar  Refining  Company 
has  no  politics  of  any  kind. 

Senator  Allen.     Only  the  poHtics  of  business  ? 

Mr.  Havemeyer.     Only  the  politics  of  business. 

Senator  Lindsay.  You  say  the  company  is  separate  and  dis- 
tinct from  the  officers  and  stockholders;  each  man  has  his  own 
politics  ? 

Mr.  Havemeyer.  We  have  nothing  to  do  with  politics  in  any 
shape  or  manner.  Our  business  is  the  refining  of  sugar  at  a 
slight  profit  that  is  consistent  with  a  reasonable  return  on  the 
industry. 


578 


American  Government  and  Politics 


224.    Officeholders  in  Politics 

Officeholders  have  been  so  prominent  in  political  aflfairs  that 
an  eminent  American  pubhcist  has  called  the  party  "an  office- 
holders' device."  From  time  to  time,  the  Presidents  of  the 
United  States  have  attempted  to  restrict  the  political  activities  of 
federal  officers  in  local  as  well  as  national  matters,  by  executive 
orders  in  the  following  tenor:  — 

Executive  Mansion, 

July  14,  1886. 

I  deem  this  a  proper  time  especially  to  warn  all  subordinates 
in  the  several  Departments,  and  all  office-holders  under  the 
general  government,  against  the  use  of  their  official  positions  in 
attempts  to  control  political  movements  in  their  localities. 

Office-holders  are  the  agents  of  the  people,  not  their  masters. 
Not  only  are  their  time  and  labor  due  to  the  government  but  they 
should  scrupulously  avoid,  in  their  political  action  as  well  as  in 
the  discharge  of  their  official  duty,  offending,  by  a  display  of 
obtrusive  partisanship,  their  neighbors  who  have  relations  with 
them  as  pubHc  officials.  They  should  also  constantly  remember 
that  their  party  friends,  from  whom  they  have  received  preferment, 
have  not  invested  them  with  the  power  of  arbitrarily  managing 
their  political  affairs. 

They  have  no  right  as  office-holders  to  dictate  the  political 
action  of  their  party  associates,  or  to  throttle  freedom  of  action 
within  party  lines,  by  methods  and  practices  which  pervert  every 
useful  and  justifiable  purpose  of  party  organization.  The  in- 
fluence of  Federal  office-holders  should  not  be  felt  in  the  manip- 
ulation of  political  primary  meetings  and  nominating  conven- 
tions. The  use,  by  these  officials,  of  their  positions  to  compass 
their  selection  as  delegates  to  political  conventions  is  indecent 
and  unfair;  and  proper  regard  for  the  proprieties  and  require- 
ments of  official  place  will  also  prevent  their  assuming  the  active 
conduct  of  poHtical  campaigns. 

Individual  interest  and  activity  in  political  affairs  are  by  no 
means  condemned.     Office-holders  are  neither  disfranchised  nor 


Politics  and  Government  579 

forbidden  the  exercise  of  political  privileges;  but  their  privileges 
are  not  enlarged  nor  is  their  duty  to  party  increased  to  pernicious 
activity  by  office-holding.  A  just  discrimination  in  this  regard, 
between  the  things  a  citizen  may  properly  do  and  the  purposes  for 
which  a  public  office  should  not  be  used,  is  easy  in  the  light  of 
a  correct  appreciation  of  the  relation  between  the  people  and  those 
intrusted  with  official  place,  and  a  consideration  of  the  necessity 
under  our  form  of  government  of  political  action  free  from  official 
coercion. 

Grover  Cleveland. 

225.   An  Assembly  District  Leader  at  Work 

This  imaginary  description  of  a  day's  work  on  the  part  of  a 
New  York  City  assembly  district  leader  gives  a  substantially  true 
account  of  the  diversified  activities  of  that  important  party  official : 

2  A.M.  —  Aroused  from  sleep  by  the  ringing  of  his  door  bell ; 
went  to  the  door  and  found  a  bartender,  who  asked  him  to  go  to 
the  police  station  and  bail  out  a  saloonkeeper,  who  had  been 
arrested  for  violating  the  Excise  law.  Furnished  bail  and  re- 
turned to  bed  at  three  o'clock. 

6  A.M.  —  Awakened  by  fire  engines  passing  his  house. 
Hastened  to  the  scene  of  the  fire,  according  to  the  custom  of  the 
Tammany  district  leaders,  to  give  assistance  to  the  fire  sufferers, 
if  needed.  Met  several  election  district  captains  who  are  always 
under  orders  to  look  out  for  fires,  which  are  considered  great  vote- 
getters.  Found  several  tenants  who  had  been  burned  out,  took 
them  to  a  hotel,  supplied  them  with  clothes,  fed  them,  and  ar- 
ranged temporary  quarters  for  them  until  they  could  rent  and 
furnish  new  apartments. 

8.30  A.M.  —  Went  to  the  police  court  to  look  after  his  con- 
stituents. Found  six  "drunks."  Secured  the  discharge  of  four 
by  a  timely  word  with  the  judge,  and  paid  the  fines  of  two. 

9  A.M.  —  Appeared  in  the  Municipal  District  Court.  Directed 
one  of  his  district  captains  to  act  as  counsel  for  a  widow  against 
whom  dispossess  proceedings  had  been    instituted  and  obtained 


580  American  Government  and  Politics 

an  extension  of  time.     Paid  the  rent  of  a  poor  family  about  to 
be  dispossessed,  and  gave  them  a  dollar  for  food. 

11  A.M.  —  At  home  again.  Found  four  men  waiting  for  him. 
One  had  been  discharged  by  the  MetropoHtan  Railway  Company 
for  neglect  of  duty,  and  wanted  the  district  leader  to  fix  things. 
Another  wanted  a  job  on  the  road.  The  third  sought  a  place  on  the 
subway,  and  the  fourth,  a  plumber,  was  looking  for  work  with  the 
Consolidated  Gas  Company.  The  district  leader  spent  nearly  three 
hours  fixing  things  for  the  four  men,  and  succeeded  in  each  case. 

3  P.M.  —  Attended  the  funeral  of  an  Italian  as  far  as  the  ferry. 
Hurried  back  to  make  his  appearance  at  the  funeral  of  a  Hebrew 
constituent.  Went  conspicuously  to  the  front  both  in  the  Catholic 
church  and  the  synagogue,  and  later  attended  the  Hebrew  con- 
firmation ceremonies  in  the  synagogue. 

7  P.M.  —  Went  to  district  headquarters  and  presided  over  a 
meeting  of  election-district  captains.  Each  captain  submitted 
a  list  of  all  the  voters  in  his  district,  reported  on  their  attitude 
toward  Tammany,  suggested  who  might  be  won  over  and  how 
they  could  be  won,  told  who  were  in  need,  and  who  were  in  trouble 
of  any  kind  and  the  best  way  to  reach  them.  District  leader  took 
notes  and  gave  orders. 

8  P.M.  —  Went  to  a  church  fair.  Took  chances  on  everything, 
bought  ice-cream  for  the  young  girls  and  the  children.  Kissed 
the  little  ones,  flattered  their  mothers,  and  took  their  fathers  out 
for  something  down  at  the  corner. 

9  P.M.  —  At  the  clubhouse  again.  Spent  $10  on  tickets  for  a 
church  excursion  and  promised  a  subscription  for  a  new  church 
bell.  Bought  tickets  for  a  baseball  game  to  be  played  by  two 
nines  from  his  district.  Listened  to  the  complaints  of  a  dozen 
pushcart  peddlers  who  said  they  were  persecuted  by  the  police 
and  assured  them  he  would  go  to  Police  Headquarters  in  the 
morning  and  see  about  it. 

10.30  P.M.  —  Attended  a  Hebrew  wedding  reception  and  dance. 
Had  previously  sent  a  handsome  wedding  present  to  the  bride. 

12  P.M. —  In  bed. 


Politics  and   Government 


581 


226.   Charity  in  Tammany  Politics 

This  clipping  from  the  New  York  Times  of  September  i,  1908, 
explains  one  of  the  efficient  secrets  of  the  strength  of  Tammany 
leaders  among  the  people,  especially  of  the  lower  East  Side  of 
the  city :  — 

The  Sullivans,  Big  Tim,  Little  Tim,  Florrie,  Dinny,  Paddy  — 
all  the  Sullivans,  in  fact,  whose  names  are  among  the  headliners 
in  Tammany  Hall,  went  to  College  Point  yesterday,  and  with  them 
went  the  Sullivan  clan,  15,000  strong,  in  chartered  steamboats, 
by  train,  trolley  cars,  and  by  ferryboats.  They  filled  Donnelly's 
Grove  at  College  Point  from  noon  until  late  at  night. 

It  was  the  annual  outing  of  the  Timothy  D.  Sullivan  Association 
in  honor  of  their  chief,  the  leader  of  the  Third  Assembly  District. 
First  there  was  a  parade,  which  started  in  front  of  the  association's 
headquarters,  207  Bowery.  With  chowder  caps  set  jauntily  upon 
their  heads  and  wearing  green  and  gold  Sullivan  badges,  the  clan 
started  down  the  Bowery  to  Third  Avenue,  wheeled  and  marched 
to  the  East  River,  where  the  steamboats  Grand  Republic  and 
Pegasus  awaited  their  embarkation.  Across  the  bows  of  the  vessels 
were  spread  pennants  of  the  Sullivans. 

At  the  pier  the  parade  came  to  a  stop,  and  Larry  Mulligan, 
half-brother  of  Big  Tim  Sullivan,  waved  his  baton,  for  he  was  the 
leader  of  the  parade,  and  the  clan,  or  as  much  of  it  as  could, 
scrambled  aboard  the  steamboats.  Meanwhile  the  bands  never 
stopped  playing.  There  were  4700  of  the  clan  aboard  the  Grand 
Republic  when  she  started  up  the  river,  and  the  Pegasus,  just  behind, 
carried  2900  joyous  members  of  the  association  and  their  friends. 
Several  hundred  men  were  left  on  the  pier,  there  not  being  room  for 
them.  They  hustled  to  Long  Island  City  and  caught  the  iirst  train 
there  to  College  Point.  The  steamboats  arrived  at  the  park  at 
about  noon,  and  all  through  the  afternoon  the  crowd  kept  growing, 
for  political  friends  of  the  Sullivans,  magistrates  and  district 
leaders  from  all  over  the  city,  dropped  in  to  pay  their  respects  to 
the  Sullivans. 


The 

Sullivan 
leaders. 


The  start 
for  the 
picnic. 


582 


American  Government  and  Politics 


Diversions 
at  the 
picnic. 


Athletics 
and  games. 


There  was  fun  aplenty.  There  always  is  at  these  Sullivan  clan 
outings.  There  was  plenty  to  eat,  for  one  thing,  and  plenty  to 
drink.  It  was  a  hungry  and  thirsty  crowd  which  swarmed  into 
the  big  dining  hall  and  fell  to  on  the  green  corn,  roast  beef,  and 
pie,  all  they  wanted  of  it.  This  meal  was  early  in  the  afternoon. 
The  real  dinner  came  later,  after  everybody  had  been  satisfied  with 
the  frolic  or  watching  athletic  stunts.  It  was  a  big  job  feeding 
that  hungry  Sullivan  clan.  The  SuUivans  themselves  and  their 
close  friends  did  not  sit  at  the  general  tables.  They  were  other- 
wise occupied  most  of  the  day.  There  were  numerous  poker 
parties  in  the  little  private  rooms  about  the  grove.  In  fact,  sev- 
eral poker  parties  were  organized  on  board  the  steamboats  as 
soon  as  they  left  the  pier,  and  the  players  resumed  juggling  the 
chips  at  the  grove. 

On  the  athletic  field  there  was  a  lot  of  fun.  There  are  many 
fair  athletes  on  the  Bowery  and  throughout  the  Sullivans'  district. 
But  some  of  the  stunts  that  had  been  arranged  did  not  require 
athletic  skill.  For  instance,  the  pie-eating  contest.  In  this 
there  were  forty  entries.  There  were  a  hundred  or  more  juicy 
huckleberry  pies.  The  rule  was,  "Eat  half  a  pie,  run  200  yards, 
eat  a  whole  pie."  The  man  who  did  this  in  the  shortest  time  re- 
ceived a  gold  medal.  He  was  Mike  Sautinoli,  time,  7  minutes. 
At  the  finish  Mike's  face  looked  like  the  inside  of  a  pie  itself. 

The  obstacle  race  provoked  much  mirth.  The  contestants  had 
to  hop  some  hurdles,  skip  over  a  lot  of  beer  kegs,  then  some  nets, 
and  finally  a  collection  of  beer  kegs,  barrels,  and  tables.  Anthony 
Bonanti  won  this  race.  He  got  a  gold  medal.  The  horse  race  had 
thirty-six  starters.  Each  man  rode  a  stage  horse.  Jim  Marino 
won  the  race  and  got  a  gold  medal.  About  100  of  the  clan  took 
part  in  the  shoe  race.  They  stripped  off  their  shoes,  and  the 
shoes  were  forthwith  mixed  up.  The  racers  ran  100  yards,  re- 
turned, and  after  picking  out  their  own  shoes  from  the  pile,  put 
them  on.  John  Russo  won  out  and  got  a  gold  medal.  Frank 
Burns  won  the  running  backward  race.  The  fat  men's  race  was 
great  sport.     Peter  Burns,  the  old  prizefighter,  finally  was  de- 


Politics  and   Government  583 

clared  victor,  but  three  heats  were  run.  There  was  another  man, 
an  Irishman,  who  won  the  first  two  heats,  but  the  judges  decided 
that  he  did  not  weigh  quite  200  pounds.  Burns  got  a  gold  medal. 
There  was  also  a  baseball  game. 

The  order  had  gone  out  before  the  start  that  no  "dicers,"  or 
silk  hats,  were  to  be  allowed  at  the  outing.  The  clan  obeyed. 
There  was  only  one  dicer  to  be  seen.  It  was  worn  by  Assembly- 
man James  E.  Oliver,  "Paradise  Park  Jimmie,"  as  he  is  known 
to  the  Sullivan  clan. 

Charles  F.  Murphy  visited  the  grove  late  in  the  afternoon. 
Many  other  well-known  Tammany  Hall  politicians  of  note  were 
also  there  at  one  time  of  the  day  or  another. 

It  was  a  grand  day  for  the  Sullivan  clan,  and  they  all  voted  it 
a  big  success. 

In  winter  as  well  as  in  summer,  Mr.  Sullivan  remembers  his 
constituents.  This  account  is  from  the  Times  of  February  7, 
1908: — 

More  than  5000  pairs  of  shoes  and  warm  stockings  were  dis-  ^^^  ^^^^ 

.  1   1  •    ,  1  distribution 

tributed  yesterday  afternoon  and  last  night  among  the  poor  men  of  shoes, 
and  boys  of  the  East  Side  by  the  Timothy  D.  Sullivan  Association. 
The  distribution  was  made  at  207  Bowery,  and  no  worthy  man 
was  turned  away  while  a  pair  of  shoes  was  left. 

The  word  had  gone  forth  that  it  was  the  Sullivan  "shoe  day," 
and  from  every  nook  came  the  army  of  near-shoeless.  And  the 
shoes  were  handed  out  right  and  left  without  question.  The 
association  took  every  man's  word  for  it  that  he  was  in  dire  need 
of  the  charity. 

When  the  time  came  to  begin  the  distribution  the  line  of  shiver- 
ing men  and  boys  extended  from  207  three  blocks  down  the 
Bowery  to  Grand  Street.  Another  extended  over  to  Rivington 
Street  and  around  to  Chrystie.  In  the  long  lines  were  scores 
whose  footgear  was  a  mere  excuse.  Boys  there  were  who  were 
so  nearly  barefoot  that  none  could  doubt  the  grim  necessity  for  a 
charitable  substitute  for  what  they  wore.     Vagrant  toes  would 


584 


American  Government  and   Politics 


get  out  in  the  snow  despite  the  most  valiant  efforts  of  their 
owners. 

Scores  of  the  unfortunates  hardly  waited  to  get  into  the  street 
before  they  began  shucking  their  tatters  and  replacing  them  with 
the  warm  stockings  and  serviceable  shoes. 

Although  the  time  fixed  for  the  beginning  of  the  work  was  4 :  30 
o'clock  in  the  afternoon,  the  lines  were  well  started  hours  before. 
Nearly  every  man  and  boy  was  armed  with  a  ticket.  These  were 
given  out  at  the  annual  Christmas  dinner  given  by  the  association. 
Many  others  wer6  passed  out  to  worthy  sufferers  yesterday  in  the 
Bowery  lodging  houses. 

The  shoes  and  stockings  were  in  big  boxes  that  were  stacked  up 
in  regular  order  so  as  to  facilitate  the  work  of  distributing  them. 
The  sizes  were  generous,  so  that  no  foot  might  find  itself  barred 
out.  Many  of  the  ticket  holders  found  themselves  equipped  with 
number  tens,  when  a  six  would  have  been  ample,  but  this  little 
discrepancy  apparently  gave  the  recipients  no  great  concern. 
Ill-fits  were  better,  obviously,  than  no  fits  at  all.  .  .  . 

Mike  Summers,  brother-in-law  of  "Big  Tim,"  stood  by  the  long 
table  behind  which  were  piled  the  shoes.  As  Jamsie,  the  janitor, 
and  Election  District  Captains  called  out  the  sizes  John  White, 
Treasurer  of  the  Association,  and  Harry  Applebaum,  Secretary  to 
"Big  Tim,"  handed  out  the  shoes. 


227.   Some  Primitive  Election  Devices 

These  are  interesting  accounts  of  some  election  methods,  un- 
happily not  entirely  obsolete,  which  were  formerly  quite  common 
in  American  politics :  — 

I  was  a  resident  of  Kansas.  I  went  one  day  to  a  town  in  an 
adjoining  county,  not  knowing  that  they  had  had  a  county  seat 
election  there  the  day  before,  though  if  I  had  known  it  would  not 
have  prevented  me  from  going  there.  However,  I  had  not  more 
than  landed  from  the  train,  when  the  probate  judge  of  that  county 
met  me;    he  looked  astonished  and  astonished  me  by  remarking, 


Politics  and  Government  585 

"My  God,  Spooner,  what  are  you  doing  here?"  I  told  him  the 
business  that  had  called  me  there,  when  he  asked  me  to  get  right 
out  on  the  first  train.  I  asked  him  why  and  he  answered,  "Why, 
man,  you  only  voted  thirty-two  times  here  yesterday."  I  thought 
it  was  time  to  get  out  of  that  town,  and  when  I  inquired  later  I 
found  that  they  had  voted,  religiously  and  constantly,  as  many 
times  as  possible,  every  man  whose  name  they  knew  in  any  county 
of  the  State. 

Those  were  the  days  when  in  county  seat  elections  and  railroad  Check- 
bond  elections  the  number  of  votes  cast  in  a  county  sometimes  ejec^wi^'^ 
exceeded  the  population  of  the  State.  We  had  a  railroad  bond  count, 
election  in  my  own  county,  and  from  the  adjoining  rival  town 
watchers  came  down.  Neither  town  wanted  bonds  to  go  through 
for  the  benefit  of  the  other  town.  So  these  watchers  came  down 
and  watched  our  election.  They  were  primitive  in  their  method 
of  checks  and  safeguards  —  they  were  farmers  —  and  the  chair- 
man of  that  committee  had  his  left-hand  overcoat  pocket  full 
of  corn ;  as  fast  as  a  vote  was  polled  he  transferred  a  grain  of  corn 
from  that  pocket  to  the  right-hand  pocket.  One  of  our  residents 
caught  sight  of  the  color  of  the  corn,  was  gone  a  few  minutes,  came 
back  with  his  pockets  suspiciously  full,  and  then  stood  for  some 
time  very  close  to  the  watching  chairman,  who  soon  found  that 
his  right-hand  pocket  was  full  and  could  not  understand  how  it 
had  happened.     He  lost  his  count. 

A  political  worker  in  New  York  City  thus  describes  his  ex- 
perience with  a  packed  convention  several  years  ago :  — 

I  attended  as  a  delegate  an  Assembly  district  convention,  which  How  the 
was  composed  of  93  delegates.     Sixty-four  of  those  delegates,  duly  ^^^^  ^^ic  con- 
certified,  with  their  credentials  in  their  hands,  were  known  to  be  vention. 
in  opposition  to  what  was  understood  to  be  the  controlling  power 
of  the  organization  in  the  city  (New  York)  —  the  county  committee. 
Twenty-nine  were  in  its  favor.     The  man  who  was  designated  by 
the  county  committee  to  call  that  convention  to  order  stood  upon 
a  narrow  platform,  with  a  police  captain  directly  in  front  of  him, 


586 


American   Government  and   Politics 


called  for  nominations  for  temporary  chairman,  refused  every 
demand  for  a  call  of  the  roll,  would  not  permit  a  standing  vote, 
but  simply  called  for  a  viva  voce  vote  on  the  nominations  made, 
and  declared  that  one  elected  who  was  favored  by  the  minority  of 
the  convention,  claiming  to  base  his  declaration  on  his  perception 
of  volume  of  sound.  The  one  so  declared  elected  chairman  was 
immediately  inducted  into  ofi&ce,  the  police  captain  standing  in 
front  protecting  him  in  the  retention  of  his  place  upon  the  plat- 
form, and  that  man  in  presiding  over  that  convention  never  once 
allowed  a  call  of  the  roll  or  a  standing  vote,  but  decided  every- 
thing, even  to  his  declaring  the  close  of  the  convention,  on  his 
perception  of  volume  of  sound  —  recognized  no  appeal  or  any  ob- 
jection or  protest  whatsoever.  The  real  majority  of  that  con- 
vention, retaining  their  places  on  the  floor,  were  obliged  to  or- 
ganize the  convention  and  conduct  its  proceedings  without  a 
platform  for  the  real  chairman  to  occupy. 


The  list 
of  party 
committees. 


228.   State  Control  of  Party  Organization 

The  extent  to  which  state  legislation  has  gone  in  controlling 
party  organization,  and  attempting  to  prevent  boss  rule  is  indicated 
by  this  extract  from  the  recent  primary  law  of  IlHnois  :^ 

Sec.  8.  The  following  committees  shall  constitute  the  central 
or  managing  committees  of  each  political  party,  viz. :  A  state 
central  committee;  a  congressional  committee  for  each  congres- 
sional district;  a  senatorial  committee  for  each  senatorial  dis- 
trict; a  county  central  committee  for  each  county;  a  city  central 
committee  for  each  city  or  village ;  and  a  precinct  committee  for 
each  precinct.  Provided,  however,  that  nothing  herein  contained 
shall  prevent  a  poHtical  party  from  electing  or  appoindng  in  ac- 
cordance with  its  practice  other  committees. 

Sec.  g.    (i)  The  State  central  committee  shall  be  composed  of 

'  While  these  pages  were  passing  through  the  press  this  law  was  declared  un- 
constitutional by  the  Supreme  Court  of  Illinois,  but  the  extract  given  here  still 
serves  its  original  purpose,  that  of  illustrating  an  important  tendency  in  state 
legislation  controlling  political  parties. 


Politics  and  Government  587 

one  member  from  each  congressional  district  in  the  State  and 
shall  be  elected  as  follows: 

At  the  August  primary  held  in  the  year  a.d.  1908  and  at  the  April 
primary  held  every  two  years  thereafter,  each  primary  elector  may 
vote  for  one  candidate  of  his  party  for  member  of  the  State  central 
committee  for  the  congressional  district  in  which  he  resides.  The 
State  central  committee  of  each  poHtical  party  shall  be  composed 
of  members  elected  from  the  several  congressional  districts  of  the 
State  as  herein  provided  and  of  no  other  person  or  persons  whom- 
soever. The  m.embers  of  the  State  central  committee  shall,  within 
thirty  days  after  their  election,  meet  in  the  city  of  Springfield,  and 
organize  by  electing  from  among  their  number  a  chairman  and 
may  at  such  time  elect  such  other  officers  from  among  their  own 
number,  or  otherwise  as  they  may  deem  necessary  or  expedient. 
The  outgoing  chairman  of  the  State  central  committee  shall,  ten 
days  before  the  meeting,  notify  each  member  of  the  State  central 
committee  elected  at  the  primary  of  the  time  and  place  of  such 
meeting. 

(2)  At  the  August  primary  held  in  August,  a.d.  igo8,  and  at   Precinct 
the  April  primary  held  every  two  years  thereafter,  each  primary 
elector  may  write  or  attach  in  the  space  left  on  the  primary  ballot 

for  that  purpose  the  name  of  one  qualified  primary  elector  of  his 
party  in  the  precinct  for  member  of  his  political  party  precinct 
committee.  The  one  having  the  highest  number  of  votes  shall  be 
such  committeeman  of  such  party  for  such  precinct.  In  case  of  a 
tie  the  primary  judges  shall  cast  lots.  The  official  returns  of  the 
primary  judges  shall  show  the  name  and  address  of  the  committee- 
man of  each  political  party. 

(3)  The  county  central  committee  of  each  political  party  shall   County 

r    ,  ,  r    ,  .  .      ,  .  r         1     committee, 

consist  of  the  members  of  the  various  precinct  committees  of  such 

party  in  the  county. 

[4.    The  senatorial  committee.] 

(5)    The  congressional  committee  of  each  political  party  shall   Conprcs- 

.  .  sional  com- 

be composed  of  the  chairmen  of  the  county  central  committees  of   mittcc. 

the  counties  composing  the  congressional  district,  excepting  that 


588 


American   Government  and  Politics 


in  congressional  districts  wholly  within  the  territorial  limits  of  one 
county,  or  partly  within  the  territorial  limits  of  one  county  and 
partly  within  the  territorial  limits  of  another  county,  then  the 
members  of  the  precinct  committees  of  the  party  residing  within 
the  limits  of  the  congressional  district  shall  compose  the  con- 
gressional committee. 

(6)  The  city  central  committee  of  each  political  party  shall  be 
composed  of  the  precinct  committeemen  of  such  party  residing  in 
such  city. 

(7)  Each  committee  and  its  officers  shall  have  the  powers  usu- 
ally exercised  by  such  committees,  and  by  the  officers  thereof,  not 
inconsistent  with  the  provisions  of  this  Act.  The  several  com- 
mittees herein  provided  for  shall  not  have  power  to  delegate  any 
of  their  powers  or  functions  to  any  other  person,  officer  or  com- 
mittee, but  this  shall  not  be  construed  to  prevent  a  committee 
from  appointing  from  its  own  membership,  proper  and  necessary 
sub-committees,  and  particularly  defining,  by  resolution,  the 
duties  of  such  sub-committees.  .  .  . 

Sec.  10.  (a)  On  the  second  Wednesday  next  succeeding  the  April 
primary,  the  county  central  committee  of  each  political  party  shall 
meet  at  the  county  seat  of  the  proper  county,  and  proceed  to 
organize  by  electing  from  among  its  own  number  a  chairman,  and 
either  from  among  its  own  number  or  otherwise,  such  other  officers 
as  said  committee  may  deem  necessary  or  expedient.  Such  meet- 
ing of  the  county  central  committee  shall  be  known  as  the  county 
convention.  The  county  convention  of  each  political  party  shall 
choose  delegates  to  the  senatorial,  congressional,  and  State  con- 
vention of  its  party:  Provided,  only  precinct  committeemen 
residing  within  the  limits  of  a  senatorial  or  congressional  district 
shair  participate  in  the  selection  of  delegates  to  senatorial  and 
congressional  conventions  respectively:  And,  provided,  further, 
that  in  the  county  convention  each  delegate  to  the  county 
convention  shall  have  one  vote  and  one  additional  vote  for  each 
fifty  or  major  fraction  thereof  of  his  party  as  cast  in  his  precinct 
at  the  last  general  election. 


Politics  and  Government  589 

(b)  All  senatorial  conventions  shall  be  held  on  the  third  Wednes- 
day next  succeeding  the  April  primary. 

(c)  All  congressional  conventions  shall  be  held  on  the  fourth 
Wednesday  next  succeeding  the  April  primary.  The  congres- 
sional convention  of  each  political  party  shall  have  power  to  choose 
and  select  delegates  and  alternate  delegates  to  national  nominating 
conventions  and  to  recommend  to  the  State  convention  of  its  party 
the  nomination  of  candidate  or  candidates  from  such  congres- 
sional district  for  elector  or  electors  of  President  and  Vice  Presi- 
dent of  the  United  States. 

(d)  All  State  conventions  shall  be  held  on  the  fifth  Wednesday 
next  succeeding  the  April  primary.  The  State  convention  of 
each  political  party  shall  have  power  to  make  nominations  of  can- 
didates for  the  electors  of  President  and  Vice  President  of  the 
United  States,  and  for  trustees  of  the  University  of  Illinois,  and  to 
adopt  any  party  platform  and  to  choose  and  select  in  accordance 
with  the  rules  and  regulations  of  its  party,  delegates  and  alternate 
delegates  to  national  nominating  conventions. 

(e)  Each  convention  may  perform  all  other  functions  inherent 
in  such  political  organization  and  not  inconsistent  with  this  act. 


CHAPTER  XXXI 


TAXATION   AND   FINANCE 


22g.    The  Problem  of  Assessing  Property 

This  extract  is  from  a  recent  report  of  the  Minnesota  Tax 
Commission :  — 

More  important  than  the  other  three  groups  of  influences  on 
the  assessment  is  the  assessor.  While  he  is  hampered  by  the  pub- 
lic opinion  created  by  the  statutory  provisions  referred  to  above, 
and  checked  in  his  work  by  the  attitude  of  boards  of  review  and 
equalization,  the  fact  remains,  nevertheless,  that  he  is  the  maker 
of  the  assessment.  As  Professor  T.  S.  Adams  remarked  in  an 
address  at  the  meeting  of  the  National  Tax  Association,  measured 
in  dollars  and  cents  the  work  of  the  local  assessor  is  far  and  away 
the  most  important  part  of  our  fiscal  system.  Continuing,  he 
said:  "Compared  with  the  general  property  tax,  corporation  taxes, 
inheritance  taxes  and  all  other  taxes  put  together  pale  into  insignifi- 
cance. In  igo2  more  than  three-fourths  of  all  the  general  reve- 
nues of  the  state  and  local  governments  came  from  taxes  upon  gen- 
eral property.  .  .  .  Whether  we  keep  or  discard  the  taxation  of 
personal  property,  the  local  assessor  will,  for  many  generations, 
continue  to  play  the  principal  role  in  the  work  of  state  finance,  and 
upon  his  probity  and  efficiency  will  depend  the  real  success  or 
failure  of  our  system." 

The  local  assessor  is  one  of  the  heritages  that  came  with  the 
township  system  of  local  government.  Elected  each  year,  he  is 
supposed  to  represent  the  ideas  of  the  people  of  the  township  and 
to  carry  them  out  in  the  making  of  the  assessment.  The  time  re- 
quired to  do  this  important  work  is  estimated  by  the  standards  of 
an  earlier  day  when  property  was  limited  and  what  there  was, 

590 


Taxation  and  Finance 


S9^ 


easily  enumerated  and  valued.  The  pay  of  this  officer  compares 
favorably  with  the  old  view  of  an  assessment.  Even  this  is  not 
granted  in  some  districts,  the  office  being  put  up  to  the  man  who 
will  make  the  lowest  bid.  In  other  districts,  the  man  who  needs 
the  money  is  given  the  position.  In  the  approximately  2,600 
townships  in  the  state,  the  larger  number  of  voters  try  to  select 
men  for  the  office  of  assessor,  who  will  make  a  fair  assessment  as 
judged  by  the  community  opinion.  This  opinion,  however,  does 
not  square  with  the  law,  since  the  basis  of  taxation  is  in  public 
opinion  uniformity  and  equality  as  compared  with  neighboring 
towns  and  counties  rather  than  the  statute  requirement. 

The  fact  remains,  however,  that  an  army  of  assessors,  each  one 
a  law  unto  himself,  and  working  on  different  standards  of  value, 
cannot  but  produce  great  inequality  of  assessment  even  if  the  condi- 
tions under  which  he  worked  were  ideal.  Ideal  conditions  do  not 
exist.  The  assessor  in  some  instances  is  forced  to  recognize  the 
poHtical  element  in  making  his  assessments,  to  take  into  considera- 
tion the  demands  for  favors  from  personal  friends  and  political 
associates,  the  lack  of  time,  insufficient  Day,  and  the  real  inherent 
difficulty  of  the  task.  It  is  this  last  phase  of  the  matter  that  is  the 
most  important  and  demands  the  largest  consideration.  The 
local  assessor  system  as  now  organized  under  the  law,  while  not  a 
failure,  will  not  permit  of  the  kind  of  assessment  that  spells  effi- 
ciency in  taxation.  The  property  holdings  of  individuals  and 
companies  extend  into  many  districts  of  the  state,  so  that  the  very 
conditions  of  competitive  business  demand  equality  of  assessment, 
not  only  between  individuals  but  as  between  different  districts 
where  business  enterprises  are  located  that  compete  with  one 
another. 

High  rates  of  taxation  are  pretty  sure  to  affect  the  appraisal  of   Factors  af- 

111  1       1         •        ■  1  •  f    1  •    J  1        fccting  the 

the  local  assessor  who  has  m  view  the  tempenng  ot  the  wma  to  the   assessment, 
shorn  lamb.     As  a  heavy  assessment  may  be  met  by  complaint 
against  the  assessor  or  by  the  removal  of  the  parties  to  other  towns, 
the  determination  of  the  assessment  becomes  a  matter  of  agree- 
ment between  the  town  authorities  and  the  ta.xpayer.     The  forces 


59^ 


American   Government  and   Politics 


of  compromise,  of  what  the  people  will  stand,  are  factors  that  have 
much  to  do  with  the  placing  of  the  assessment. 


230.  The  Separation  of  State  and  Local  Revenues 

The  proposal  to  separate  state  and  local  revenues  has  been  made 
many  times  in  the  last  ten  years.  The  taxing  officers  of  the  various 
states  have  almost  without  exception  hailed  the  plan  as  a  means  of 
getting  away  from  the  difficulties,  uncertainties,  and  inequalities 
of  the  general  property  tax.  In  brief,  the  idea  of  separation  is  to 
secure  the  state  revenues  from  statewide  corporations  and  busi- 
ness concerns,  such  as  railroads,  insurance  companies,  public 
utility  corporations,  telegraph  and  telephone  companies,  etc.,  and 
to  give  over  to  the  localities  the  revenues  arising  from  the  taxation 
of  real  estate,  and  in  some  proposals,  the  tax  upon  the  assessment 
of  certain  kinds  of  personal  property. 

Four  reasons,  more  or  less  important,  and  advanced  with  differ- 
ent degrees  of  emphasis,  may  be  assigned  for  the  separation  of 
the  state  from  local  revenues:  (i)  The  first  of  these  reasons  is  the 
desire  to  secure  a  larger  revenue  to  meet  state  expenses.  This 
point  of  view  emphasizes  the  original  demand  for  heavier  and 
more  specific  taxes  upon  corporations.  As  such  taxes  have  been 
developed,  the  attention  of  legislatures  and  taxing  officials  has  been 
drawn  to  the  wisdom  of  that  system  of  taxation  and  the  better 
results  ensuing  from  it  over  and  above  the  old  method  of  local 
assessments. 

(2)  As  time  wore  on  the  need  of  more  revenues,  while  insistent, 
no  longer  remained  the  essential  element  in  demanding  statewide 
taxation  of  specific  corporations.  The  question  of  equality  of 
assessment,  ease  of  administration  and  the  elimination  of  the 
annual  wrangle  with  local  assessors  and  corporation  officials  be- 
came dominant  in  the  thought  of  men  administering  the  tax  laws, 
making  the  assessments,  levying  and  collecting  the  taxes.  This 
was  a  step  toward  the  recognition  of  the  more  fundamental  diffi- 
culties inherent  in  the  tax   system   itself,  those   involved   in   the 


Taxation  and  Finance 


S93 


question  of  equalization  and  the  evils  and  inconsistencies  of  the 
personal  property  tax. 

(3)  The  raising  of  revenues  for  state  purposes  by  a  general 
levy  upon  all  the  real  and  personal  property  of  a  state  was, 
and  is  yet  in  most  commonwealths,  the  method  of  securing  the 
funds  necessary  to  carry  on  the  work  of  the  state  governments. 
Out  of  this  system  arose,  because  of  the  failure  of  assessors  to 
make  true  value  assessments,  the  problem  of  equalization  in 
every  division  of  government  —  town,  village,  city,  county,  and 
state.  Boards  of  equalization  were  devised  in  the  law  for  each  of 
the  divisions  of  government  as  seen  in  the  boards  of  review,  county 
boards  of  equalization,  and  the  state  board  of  equalization.  The 
first  was  to  equalize  between  individuals,  the  second  between  local 
governments,  and  the  third  between  the  larger  divisions  of  local 
governments,  the  counties.  Equalization  tended  by  the  very 
nature  of  the  problem  involved  to  hold  the  assessment  down  to  the 
minimum  point  rather  than  to  encourage  the  increase  in  the  as- 
sessments. 

(4)  The  last  of  the  four  reasons  referred  to  above  was  the  break- 
down in  the  general  property  tax.  So  far  as  real  estate  was  con- 
cerned the  local  assessment  of  real  estate  reached  every  piece  of 
property,  though  often  at  varying  assessments.  The  same  could 
not  be  said  of  the  personal  property.  The  levy  of  a  state  tax  upon 
real  estate  resulted  in  contributions  in  varying  percentages  of  as- 
sessment, but  the  personal  property  tax  fell  upon  tangible  goods 
and  failed  to  reach  the  great  values  bound  up  in  securities,  money 
and  other  intangible  representations  of  wealth.  To  reach  these  by 
giving  over  the  local  assessment  method  of  dealing  with  personal 
property  and  commuting  the  whole  tax  upon  personalty  of  corpora- 
tions and  the  holdings  of  individuals  by  levying  a  flat  rate  upon 
franchise  values,  capitalization  of  earnings,  was  but  the  inevitable 
result  of  the  breakdown  of  the  general  property  tax. 

The  advantages  to  be  derived  from  the  separation  of  state  and  Advantages 
local  revenues  are  declared  to  be :   (i)    conformity  of  tax  system  to  ^on!^^"^^ 
natural  division  of  government;    (2)     greater  equality  of  assess- 

2Q 


594 


American  Government  and  Politics 


ment ;  (3)  lower  tax  rates ;  (4)  the  elimination  of  the  conflicts  be- 
tween city  and  country;  and  (5)  a  greater  flexibility  of  taxes  and 
larger  adaptation  of  means  to  end.  The  growth  of  statewide  busi- 
ness has  made  it  necessary  to  materially  modify  the  tax  system. 
The  taxation  of  corporations  by  special  acts  has  tended  steadily 
to  separate  the  sources  of  the  state's  revenues  from  those  of  the 
local  governments.  It  is  felt  that  in  addition  to  securing  a  natural 
division  of  taxing  function  based  upon  the  character  of  the  govern- 
ment, such  separation  would  ehminate  the  efforts  now  made  to 
keep  assessments  lower,  since  the  question  would  then  become  a 
local  one.  Local  tax  rates  would  be  reduced  by  the  amount  of  the 
former  state  tax  and  some  of  the  old  causes  of  strife  between  city 
and  country  over  the  assessments,  no  longer  existing,  would  do 
away  with  that  friction  since  each  community  would  in  a  large 
measure  determine  its  own  basis  of  assessment.  And  finally  each 
community  could  work  out  for  itself  the  adjustment  between  as- 
sessment, taxes  and  expenditures  which  seemed  wise  to  the  people 
of  the  district.  Two  methods  of  securing  the  separation  of  state 
from  local  revenues  have  been  suggested:  one  is  known  as  the 
special  taxation  of  corporations  and  the  other  is  called  the  appor- 
tioning of  contributions  to  the  state  on  the  basis  of  local  expendi- 
tures. 

I  St.  The  first  method  proposes  the  abandonment  of  the  general 
property  tax  as  a  means  of  raising  state  revenues  and  the  sub- 
stitution in  its  place  of  special  corporation  taxes,  tax  on  inheri- 
tances, license  taxes,  etc.  It  is  not,  however,  every  state  that  has 
sources  of  revenue  large  enough  to  make  it  possible  to  raise  all  the 
revenue  needed  from  the  tax  on  corporations  and  inheritances. 
The  best  that  can  be  done  in  states  where  such  is  the  case  is  to 
develop  as  far  as  possible  the  special  taxes  on  corporations  and  in- 
heritances and  rely  for  the  balance  upon  the  taxation  of  the  general 
property  in  the  state.  The  state  of  New  York  has  carried  this  plan 
to  its  logical  conclusion  and  has  accompHshed  the  complete  separa- 
tion of  the  state  revenue  from  the  local  revenues,  though  the  gen- 
eral property  tax  still  exists  as  the  means  of  raising  the  moneys 


Taxation  and  Finance  595 

needed  to  meet  local  expenditures.  Pennsylvania  levies  no  state 
tax  upon  the  general  property  of  the  state,  but  the  state  does  collect 
for  both  state  and  local  purposes  a  tax  upon  licenses,  sales  of  mer- 
chandise, capitalization  of  corporations,  inheritances  and  gross 
earnings  of  public  utility  corporations.  In  the  sense  of  separation 
of  state  and  local  revenues  Pennsylvania  has  not  accomplished  the 
results  that  New  York  has  been  enabled  to  put  in  force,  but  in  the 
sense  of  centralization  of  tax  collection  and  administration  Penn- 
sylvania has  made  marked  progress  by  devising  the  system  of 
dividing  the  tax  between  the  state  and  local  governments  collected 
through  the  agency  of  the  state.  The  relation  of  revenues  to  ex- 
penditure is  overlooked  in  this  plan ;  the  state  finances  lack  elastic- 
ity, but  the  local  governments  are  able  to  secure  it  by  modifying  the 
rate  on  real  estate. 

2nd.  In  order  to  meet  the  difficulty  referred  to  above,  that  of  Taxation 
insufficient  sources  of  revenue  to  permit  of  separation  of  state  and  accordinr^ 
local  revenues,  it  has  been  proposed  to  call  upon  the -local  govern-  to  expendi- 
ments  to  contribute  to  the  expenses  of  the  state  in  proportion  to 
their  expenditures  and  by  this  means  secure  what  was  accomplished 
by  the  special  taxation  of  corporations.  Professor  Seligman  in  his 
paper  before  the  National  Tax  Conference  of  1907  describes  this 
method  as  follows:  "At  present  the  state  general  property  tax  is 
distributed  among  the  counties  by  apportioning  the  quota  of  each 
according  to  the  assessed  valuation  of  the  property.  The  ap- 
portionment-by-expenditures method  as  opposed  to  the  apportion- 
ment-by-valuation method  would  distribute  the  amount  to  be 
raised  for  state  purposes  to  each  county  on  the  basis  of  the  total 
expenditure,  or,  what  is  the  same  thing,  on  the  basis  of  the  total 
revenue  collected  to  defray  this  expenditure  within  each  county  and 
all  the  taxing  districts  contained  in  the  county."  This  method 
gives  the  local  government  the  opportunity  to  levy  taxes  as  it  sees 
fit,  to  secure  greater  equality  of  tax  burden  and  economy,  and 
renders  it  possible  to  know  what  the  relation  is  between  state  and 
local  expenditures. 

The  objection  urged  against  this  j)lan  is  the  check  it  places  upon 


tures. 


596 


American   Government  and   Politics 


local  expenditures.  This  would  be  especially  true  of  new  com- 
munities that  are  struggling  to  secure  better  roads,  pavements, 
sewers,  electric  lights,  and  schools.  Such  communities  would  be 
punished  for  the  expenditures  made  for  improvements.  While 
this  objection  in  the  long  run  would  not  hold  good  it  is  doubtful  if 
the  legislatures  of  any  considerable  number  of  states  would  look 
with  favor  upon  the  plan.  They  would  prefer  the  more  direct  way 
of  taxing  corporations. 

One  state,  Oregon,  however,  has  adopted  this  system  of  ap- 
portioning state  expenses.  The  tax  commission  of  that  state  in 
their  report  for  1906  have  the  following  to  say  regarding  the  system: 
"  Happily,  Oregon  has  taken  a  very  advanced  stand  in  the  matter  of 
state  apportionment.  In  fact,  the  method  in  force  in  this  state  at 
the  present  time,  and  as  contemplated  by  our  present  statutes  to  be 
enforced  in  the  near  future,  is  very  near  ideal,  and  reduces  to  a  min- 
imum the  necessity  of  indirect  taxation  for  state  purposes."  It 
also  avoids  the  chief  objection  to  the  separation  of  state  from  local 
revenues,  that  of  inelasticity,  the  lack  of  coincidence  between  reve- 
nue and  expenditure. 

This  desirable  feature  of  a  taxing  system  exists  in  the  case  of  the 
general  property  tax  under  whose  provisions  more  revenue  was 
secured  by  raising  the  tax  rate  on  the  same  assessment  or  a  lesser 
amount  on  a  larger  assessment  by  a  change  in  the  tax  rate.  Sep- 
aration of  the  state's  revenues  from  those  of  the  local  government 
and  the  getting  of  the  revenue  from  corporations  lost  to  the  state 
the  advantage  of  elasticity.  Says  the  Oregon  tax  commission  in 
its  report  for  1906:  "The  general  property  tax  is  certainly  elastic 
and  self-regulative,  which  cannot  be  said  of  the  indirect  method  of 
raising  revenues  for  state  purposes.  The  state  has  no  control  over 
the  happening  of  events  which  make  the  tax  inure  to  it.  It  can 
neither  ascertain  the  number  of  such  events  nor  the  time  of  their 
happening,  in  advance  of  their  taking  place,  and  it  must  fix  the 
rates  beforehand.  The  consequence  is  that  it  must  accept  the 
sums  coming  due  to  it  without  any  power  on  its  part  to  increase  or 
diminish  them  to  meet  its  financial  needs.     The  indirect  tax  creates 


Taxation  and  Finance  597 

either  a  surplus  or  a  deficit  at  the  end  of  the  fiscal  year,  and  the 
state  is  powerless  to  determine  which  way  the  balance  will  be. 
Further  the  taxpayer  does  not  take  as  keen  an  interest  in  the  ex- 
penditure of  his  money  as  when  he  pays  it  directly  into  the  pubhc 
treasury  and  consequently  does  not  hold  the  public  officers  to  the 
same  strict  accountability.  We  contend  for  the  principle  that  tax 
contribution  and  demand  for  revenue  shall  act  and  adjust  them- 
selves each  to  the  other." 

231.    Taxation  of  Personal  Property  * 

It  was  for  a  long  time  a  theory  of  American  finance  that  all 
property  should  be  taxed  equally  at  a  certain  valuation,  but  with 
the  growth  of  enormous  masses  of  wealth  in  the  form  of  intangible 
securities  which  escape  assessment,  serious  defects  have  become 
apparent  in  the  application  of  the  old  principle,  and  a  demand 
has  come  for  its  abandonment.  The  problem  is  fully  considered 
in  the  recent  report  of  the  Minnesota  Tax  Commission :  — 

The  criticism  against  the  general  property  tax  has  been  directed  Why  the 


almost  wholly  toward   the   personal  property  side   of    the   tax. 


personal 
property 

Commission  after  commission,  author  after  author,  and  expert  tax  is  re- 
after  expert,  have  fulminated  against  the  tax  upon  personal  prop- 
erty. Despite  these  criticisms  this  form  of  tax  still  continues  to 
stand  on  the  statute  books  in  many  states  as  well  as  in  Minnesota. 
The  general  fear  has  been  that  its  removal  or  modification  might 
result  in  an  increase  in  the  burden  upon  real  estate,  which  is  re- 
garded as  a  fundamentally  just  and  practically  workable  tax. 
This  contention  has  no  little  weight  and  will  check  any  change  in 
the  personal  property  tax  until  the  owners  of  real  estate  are  satisfied 
that  the  tax  burden  on  their  property  is  not  increased,  but  lessened, 
by  the  alteration  of  the  law. 

As  has  been  shown  in  some  degree  in  previous  chapters,  the  The  burden 
assessment  of  personal  property  is  a  matter  of  the  greatest  difficulty   personal 
not  only  in  determining  the  values  but  in  locating  the  property.     In   property, 
most  instances  the  assessor  is  compelled  to  ask  the  value  of  stocks  of 
goods,  to  use  an  average  value  for  determining  the  assessment  against 


598 


American  Government  and  Politics 


No  increase 
in  personal 
property 
returns. 


live  stock,  and,  when  it  comes  to  the  existence  of  intangible  prop- 
erty, to  depend  entirely  upon  the  word  of  the  owner.  A  great  deal 
of  personal  property  necessary  to  the  existence  of  every  home  is 
unproductive ;  sewing  machines  and  pianos  pay  no  \isible  money 
return  to  their  owners,  but  are  listed  because  they  can  be  seen. 
On  the  other  hand  the  owner  of  so-called  intangible  wealth  refuses 
to  list  it,  either  because  it  is  easily  concealed  or  because  the  tax 
rate  is  such  a  large  part  of  the  income  derived  from  the  property 
that  to  report  it  practically  means  confiscation  of  the  income. 
Thus  the  anomaly  exists  of  tangible  non-earning  property  paying 
a  heavy  tax  and  intangible  income-bearing  wealth  going  into  hiding 
and  escaping  the  payment  of  its  share  of  the  tax  burden. 

In  the  last  ten  years  the  personal  property  returned  by  the  as- 
sessors in  Minnesota  is  about  one-fifth  of  the  total  assessment,  and 
the  credits  and  moneys  returned  will  average  about  one-fourth  of 
the  personalty.  This  close  approximation  to  a  given  proportion 
indicates  hide-bound  methods  of  making  assessments  and  the  re- 
turn of  practically  the  same  amount  of  goods  each  year  except  as 
the  aggregate  is  increased  by  the  growth  of  population.  Testing 
this  statement  by  a  comparison  of  per  capita  returns  for  assess- 
ments, it  will  be  found  that  the  per  capita  assessment  of  personal 
property  is  no  larger  in  1905  than  it  was  in  1880,  though  the  per 
capita  total  assessment  grew  from  $343.91  in  1880  to  $443.71  in 
1905.  The  per  capita  returns  for  credits  in  1880  and  1905  are 
practically  the  same,  but  less  than  they  were  in  1885  and  1890. 

The  conclusion  to  which  all  of  the  facts  brought  forth  in  the 
various  tables  trend  is  that  the  burden  of  the  general  property  tax 
falls  upon  the  real  estate  and  the  familiar  everyday  classes  of 
property  known  to  every  one.  The  return  of  moneys  to  an 
amount  less  than  four  per  cent  of  the  deposits  in  banks  is  evidence 
of  defects  in  the  law  and  the  method  of  making  assessments.  The 
law  fails  to  distinguish  between  types  and  kinds  of  property,  re- 
garding them  as  alike,  whether  big  or  little,  and  whether  income 
earners  or  unproductive;  the  assessment  was  wrong  in  method 
when  inaugurated  and  has  steadily  grown  more  unsatisfactory  as 


Taxation  and   Finance  599 

the  machinery  of  assessment  has  had  to  cope  with  larger  and  more 
difficult  problems. 

Despite  the  showing  made  of  the  inadequate  returns  of  the  per-  Penalties 
sonal  property  tax  even  under  coercion,  there  are  men  who  believe  j-gtupus^ 
the  general  property  tax  law  can  be  enforced  and  who  call  for 
more  stringent  methods,  asking  that  men  be  punished  by  impris- 
onment and  confiscation  of  their  property  for  falsification  of  re- 
turns. While  it  is  not  generally  known,  Minnesota  has  a  law  on 
the  statute  books  which  is  severe,  yet  it  seems  to  have  had  prac- 
tically no  effect  in  securing  better  enforcement  of  the  law  regard- 
ing assessment  returns.  The  law  reads  as  follows:  "Every  per- 
son who,  in  making  any  statement,  oral  or  written,  which  is 
required  or  authorized  by  law  to  be  made  as  a  basis  of  imposing 
or  reducing  any  tax  or  assessment,  shall  wilfully  make  any 
statement  as  to  any  material  matter  which  he  knows  to  be  false, 
shall  be  guilty  of  a  gross  misdemeanor.  Whoever  shall  be  con- 
victed of  a  gross  misdemeanor  for  which  no  punishment  is  pre- 
scribed by  any  statute  in  force  at  the  time  of  conviction  and  sen- 
tence shall  be  punished  by  imprisonment  in  the  county  jail  for  not 
more  than  one  year,  or  by  fine  of  not  more  than  one  thousand 
dollars." 

Ohio  and  Iowa  have  resorted  to  tax  ferrets  to  get  at  their  hidden  The  faUure 
personal  property.  Such  officers  were  given  large  rewards  in  re-  methods, 
turn  for  discovery  of  property  upon  which  back  taxes  could  be 
collected.  The  result  was  unsatisfactory,  forcing  men  to  leave 
the  state,  and  reducing  rather  than  increasing  the  amounts  of  prop- 
erty on  the  personal  property  rolls.  The  signers  of  a  supple- 
mental report  made  by  the  New  York  special  tax  commission  in 
1907,  stated  that:  "Every  possible  attempt  has  been  made  to 
enforce  the  personal  property  tax.  We  have  had  lenient  measures 
and  listing  bills;  self-assessments  and  official  assessments,  'tax 
inquisitors'  and  'tax  ferrets.'  We  have  had  taxation  of  debts 
and  exemption  of  debts.  .  .  .  We,  therefore,  brush  aside  as  unde- 
serving of  any  serious  consideration,  the  proposition  to  remedy  the 
present  evils  of  personal  property  taxation,  by  attempting  to  make 


6oo 


American   Government  and  Politics 


the  law  more  rigorous.  What  has  been  tried  so  often  and  always 
so  unsuccessfully  everywhere  else  will  not  succeed  here." 

The  Massachusetts  tax  commission  of  1907  had  this  to  say  about 
the  Ohio  laws:  " It  will  be  seen  that  the  law  makers  of  Ohio  have 
about  exhausted  human  ingenuity  in  inventing  drastic  methods  of 
securing  the  disclosure  of  personal  property.  The  only  known 
expedient  which  they  seem  to  have  overlooked  is  the  use  of  torture, 
which  was  employed  in  the  Roman  Empire  to  force  reluctant  tax 
payers  to  disclose  their  personal  estates.  What  has  been  the  result 
of  the  drastic  measures  which  Ohio  has  seen  fit  to  employ  ?  From 
the  reports  of  tne  State  Auditor  we  learn  that  in  1870  personal 
property,  including,  according  to  the  Ohio  classification,  the 
property  of  railroads  and  some  other  corporations,  amounted  to 
38  per  cent  of  the  total  property  assessed  for  taxation;  in  1905  it 
amounted  to  31  per  cent ;  so  that  in  Ohio,  as  elsewhere,  an  increasing 
proportion  of  the  burden  of  taxation  has  fallen  upon  real  estate." 

A  second  group  of  critics  and  advocates  recognize  the  defects 
of  the  personal  property  tax  and  feel  that  it  cannot  be  enforced 
when  in  direct  opposition  to  economic  law.  They  therefore  call 
upon  the  legislatures  to  abolish  all  taxes  on  credits  and  intangibles 
and  to  estabUsh  a  system  of  franchise,  gross  earnings,  habitation 
and  license  taxes  in  lieu  of  the  one  now  so  generally  existent.  Their 
argument  for  the  exemption  of  credits,  moneys  and  other  so-called 
intangibles  is  the  famiUar  one  that  personal  property,  if  returned 
for  taxation  at  the  regular  tax  rate  and  the  cash  value  of  the  prop- 
erty, may  pay  a  tax  equal  to  one-third  or  one-half  of  the  income. 
In  addition,  the  point  is  made  that  promissory  notes,  bonds  and 
obhgations  of  different  kinds  are  not  tangible,  but  have  their  being 
through  the  ownership  of  existent  tangible  property ;  in  other  words 
that  credits,  not  being  property,  their  taxation,  if  permitted,  would 
result  in  double  taxation. 

Much  of  this  contention  can  be  admitted,  yet  the  courts  have 
repeatedly  held  that  credits  are  property  subject  to  taxation.  To 
the  average  man,  a  security,  be  it  bond  or  stock,  mortgage  or  mere 
credit,  is  a  demand  for  purchasing  power  which  men  seek  and  prize 


Taxation  and   Finance  60 1 

highly.  In  the  opinion  of  the  community  the  man  who  owns 
securities  and  receives  an  income  from  them  because  of  his  owner- 
ship, ought  to  share  in  the  burdens  of  the  community  by  paying 
something  in  the  form  of  taxes.  No  one  denies  this  proposition; 
the  advocate  of  the  personal  property  tax  insists  he  shall  do  it 
directly,  while  the  contender  for  no  tax  on  credits  and  securities 
maintains  that  he  does  it  indirectly,  the  whole  matter  being  a 
question  of  economic  adjustment.  To  add  taxes  means  higher 
rates  of  interest,  which  the  borrower  must  always  pay,  not  the 
man  who  lends. 

Between  the  two  positions  described  above  is  a  third,  which  ^  middle 
recognizes  something  of  the  contention  of  both  by  taking  what  is 
essentially  a  compromise  position.  Income,  rather  than  the 
value  of  what  is  taxed,  is  the  keynote  to  the  third  view  of  the 
personal  property  tax.  The  procedure  from  this  point  of  view  is, 
briefly:  to  exempt  from  taxation  some  tangible  property  in  the 
form  of  household  goods,  live  stock,  and  mechanics'  tools,  and  to 
place  upon  credit,  stocks,  bonds,  moneys,  mortgages,  and  promis- 
sory notes  a  moderate  tax  which  will  not  be  confiscatory,  but  emi- 
nently fair.  In  two  states  this  method  of  taxation  has  been  tried 
with  results  that  stand  out  in  marked  contrast  to  those  attained  in 
states  using  the  personal  property  tax.  In  Pennsylvania  the 
assessment  of  intangibles  reached  in  1907  the  enormous  sum  of 
$1,014,000,000.  In  Maryland,  the  assessors  of  the  city  of  Balti- 
more alone  secured  an  assessment  of  $150,000,000  upon  intangibles 
in  the  same  year. 

A  minority  of  a  special  Tax  Commission  which  reported  on 
taxation  in  New  York  in  1907  made  an  indictment  of  the  personal 
property  tax :  — 

We,  the  undersigned,  members  of  the  Tax  Commission,  have  The  failure 
signed  and  concur  in  the  conclusions  and  recommendations  arrived  sona^prop- 
at  in  our  main  report,  but  beg  herewith  to  submit  an  additional  and   crty  tax. 
supplemental  report  for  the  taxation  of  incomes  as  a  substitute  for 
the  present  tax  on  personal  property.     We  deem  the  following  facts 
have  been  fully  established  before  this  Commission. 


6o2 


American  Government  and   Politics 


The 
amount 
assessed 
against 
multi-mil- 
lionaires. 


First.  That  the  assessed  value  of  all  real  estate  in  the  State  is 
approximately  seven  billions  of  dollars. 

Second.  That  the  assessed  value  of  all  personal  property  is 
approximately  $800,000,000. 

Third.  That  the  market  value  of  all  real  estate  is  but  slightly 
in  excess  of  its  assessed  valuation. 

Fourth.  That  the  value  of  all  personal  property  owned  by  the 
citizens  of  this  State  is  not  less  than  twenty-five  billions  of  dollars. 

Fifth.  That  the  income  from  investments  made  in  real  estate  is 
of  much  lower  percentage  than  that  derived  from  personal  property. 

Sixth.  That  the  richer  a  person  grows  the  less  he  pays  in  rela- 
tion to  his  property  or  income. 

Seventh.  That  the  owners  of  personal  property  have  advo- 
cated and  voted  for  local  improvements  without  any  substantial 
contribution  on  their  part,  until  the  tax  on  real  estate  has  be- 
come a  great  burden. 

Eighth.  Experience  has  shown  that  under  the  present  system, 
personal  property  practically  escapes  taxation  for  either  local  or 
State  purposes.  As  proof  of  this  the  following  table  showing  the 
amount  assessed  against  well-known  multi-millionaires  for  per- 
sonal property  is  as  follows,  for  the  year  1907  in  the  City  of  New 
York: 

Oliver  H.  P.  Belmont $    200,000  00 

Cornelius  Bliss 100,000  00 

Andrew  Carnegie 5,000,000  00 

Henry  Clews       100,000  00 

Chauncey  M.  Depew 50,000  00 

John  W.  Gates 250,000  00 

Frank  J.  Gould       50,000  00 

John  D.  Rockefeller     .     .     .     .     „ 2,500,000  00 

WiUiam  Rockefeller 300,000  00 

H.  H.  Rogers 300,000  00 

Russell  Sage 2,000,000  00 

Alfred  G.  Vanderbilt 250,000  00 

John  Jacob  Astor 300,000  00 


Taxation  and  Finance  603 

232.    The  Inheritance  Tax 

The  Wisconsin  Tax  Commission  in  a  recent  report  made  this 
statement  of  the  case  in  favor  of  the  tax  on  inheritances. 

The  economic  theories  for  the  inheritance  tax  are  several,  such  Economic 
as  the  limitation  of  inheritance,  the  diffusion  of  wealth,  co-heirship  t\^°l^^^  ^^ 
of  the  state,  cost  of  administration,  the  special  privileges  accruing 
to  the  recipient  of  property,  the  accidental  or  fcjrtuitous  income, 
the  receipt  of  property  without  toil  or  service,  and  the  back  tax 
theory.  The  enumeration  does  not  include  all  the  arguments 
advanced  in  justification  of  the  tax,  nor  is  it  to  be  understood  that 
agreement  exists  upon  the  validity  of  the  theories  just  stated. 

The  view  that  the  power  of  taxation  should  be  employed  to  Is  the  tax 
limit  the  amount  of  inheritance  or  bequest  and  thus  prevent  the 
accumulation  of  large  fortunes,  although  not  necessarily  socialistic, 
is  generally  so  regarded,  and  does  not  have  the  approval  of  con- 
servative men  as  a  sound  basis  for  taxation.  This  theory  rests  on 
the  proposal  that  property  above  a  specified  large  amount  like 
$500,000,  or  $1,000,000,  or  the  major  part  thereof,  shall  escheat 
to  the  state  or  be  taken  by  the  way  of  taxation.  The  doctrine  of 
escheat  or  the  diffusion  of  wealth  is  generally  regarded  as  unsound 
and  fails  to  satisfy  the  best  writers  on  economics,  although  sup- 
ported by  eminent  authors  with  great  plausibiHty. 

The  back  tax  theory  has  more  popular  support  than  anyNother,  Back  tax 
and  in  some  states  has  been  the  most  potent  argument  for  the  '^'"S""^'^"  • 
enactment  of  inheritance  tax  laws.  The  claim  is  that  as  the 
general  property  tax  is  largely  evaded  during  life,  it  is  no  more 
than  just  that  the  state  should  recover  the  equivalent  from  the 
recipient  of  property  by  a  tax  that  cannot  be  evaded.  The  im- 
possibiHty  of  framing  a  law  on  a  scientific  basis  to  accurately 
reach  the  exact  amount  of  the  tax  evaded  during  life  will  be  recog- 
nized by  the  most  casual  observer. 

The  difficulty  of  following  the  changes  in  the  form,  character,  or  Weakness 

in  this 

value  of  property,  throughout  the  hie  of  a  decedent,  so  as  to  show  argument, 
the  true  condition  of  the  estate  to  the  satisfaction  of  the  court 


6o4 


American   Government  and   Politics 


Reaching 
intangible 
property. 


Professor 
Ely's  argu- 
ment. 


administering  it  is  unsurmountable,  and  such  investigation  is  pos- 
sible only  for  a  very  short  period  immediately  preceding  death. 
The  logical  application  of  the  back  tax  argument  would  demand 
the  enactment  of  a  law  for  levying  an  inheritance  tax  equal  to  the 
tax  which  should  have  been  but  was  not  assessed  against  the  prop- 
erty in  the  lifetime  of  the  owner.  The  burden  would  be  cast  on 
the  state  of  establishing  by  proof  the  assessment  of  the  entire 
property  from  year  to  year  with  the  taxes  paid  thereon,  and  the 
various  kinds  and  value  of  property  during  the  same  periods,  to 
ascertain  the  sum  of  taxes  actually  paid,  and  the  amount  which 
ought  to  have  been  paid.  The  difference  would  be  the  inheritance 
tax  in  each  particular  case  if  the  validity  of  the  argument  is  to  find 
expression  in  the  law. 

In  this  country  taxes  on  real  estate  are  levied  and  paid.  The 
instances  where  land  escapes  are  exceedingly  rare,  generally  due 
to  the  inadvertence  of  assessors,  and  in  this  state  efficient  pro- 
visions exist  for  placing  all  real  and  personal  property  on  the  tax 
roll  whenever  omitted  in  the  three  prior  years.  It  is  personal 
property  of  the  intangible  kind  that  escapes  taxation.  Visible 
property  is  generally  found  and  taxed  with  as  much  certainty  as 
real  estate.  Therefore  to  be  logical  only  intangibles  such  as  money, 
notes,  stocks,  bonds,  mortgages  and  other  credits  should  be  subject 
to  the  inheritance  tax.  The  loss  of  revenue  legally  due  the  state 
by  the  concealment  or  omission  of  this  class  of  property  is  a  strong 
inducement  to  the  enactment  of  inheritance  tax  laws,  and  the 
argument  is  not  to  be  wholly  brushed  aside  when  the  policy  of 
this  legislation  is  considered.  It  must,  however,  be  conceded 
that  the  theory  of  exacting  from  the  heir  the  tax  evaded  by  his 
ancestor  cannot  be  sustained  on  equitable  principles.  It  would  be 
a  penalty  on  the  heir  for  the  sins  of  his  ancestor,  which  is  not  a  good 
basis  upon  which  to  rest  a  just  system  of  taxation. 

In  the  opinion  of  Dr.  Richard  T.  Ely,  an  eminent  authority  on 
economics,  the  inheritance  tax  can  best  be  sustained  on  the  theory 
that  it  falls  on  property  which  comes  to  the  recipient  without  effort 
or  labor.     "Property,"  he  says,  "which  comes  by  inheritance  is 


Taxation   and   Finance  605 

an  income  received  without  toil.  It  is  for  the  one  receiving  it  an 
unearned  increment  of  property,  and  on  this  account  may  properly 
be  taxed.  The  most  satisfactory  basis  upon  which  property  can 
rest  is  personal  toil  and  service  of  some  kind  and  when  property 
comes  otherwise  than  as  a  return  for  social  service,  a  special  tax 
finds  a  good  solid  basis  in  justice."  The  accidental  or  fortuitous 
receipt  of  pioperty  on  the  occasion  of  the  death  of  the  owner  is  ad- 
vocated by  Dr.  E.  R.  A.  Seligman  and  Dr.  Max  West  as  a  sound 
economic  theory  for  the  support  of  an  inheritance  tax. 

The  objections  sometimes  urged  that  an  inheritance  tax  is  a  Other 
tax  on  capital  or  unequal  or  double  taxation  are  unsound.  The  considered 
objection  that  the  taxation  is  a  discouragement  to  industry  and 
thrift,  and  tends  to  drive  capital  away  applies  with  far  less  force  to 
the  inheritance  tax  than  to  the  general  property  tax.  It  sinks  into 
comparative  insignificance  with  the  heavy  burden  of  municipal 
taxes  levied  annually ;  whereas  the  inheritance  tax  is  paid  at  long 
intervals,  or  once  in  a  lifetime. 


CHAPTER  XXXII 

SOCIAL  AND   ECONOMIC   LEGISLATION 

233.    The  spirit  of  Opposition  to  Corporations 

The  spirit  which  has  led  to  much  anti-trust  legislation  is  re- 
vealed in  this  speech  delivered  by  Mr.  Burr  in  the  last  New  York 
constitutional  convention :  — 

The  trust  The  trust  has  come  determined  to  stay.     It  has  determined  to 

rapacity  accomplish  its  ends,  no  matter  what  the  cost.  It  controls  the  great 
maintained  staples  of  the  Country.  It  is  born  of  rapacity  and  maintained  by 
y  yranny.  tyj-^nny.  It  stretches  out  its  tentacles,  quietly  and  stealthily,  until 
whole  industries  are  in  its  grasp.  It  creates  a  monopoly  by  throt- 
tling all  competitors.  It  grinds  down  those  who  furnish  the  raw 
material  and  supply  the  labor,  and  exacts  the  highest  possible  price 
from  the  consumer.  It  has  become  an  impregnable  citadel  of  capi- 
tal. It  employs  the  highest  legal  and  business  capacity  to  perfect 
and  maintain  its  organization.  It  laughs  at  public  opinion,  rides 
roughshod  over  railroad  enactments,  and  baffles  the  law  courts. 
It  bridles  newspapers  with  subsidies,  and  sends  members  to  the 
Legislature  and  to  Congress.  It  has  agents  in  every  Legislature, 
and  legislative  bodies  become  as  pliable  as  wax  in  the  hands  of 
the  modellor  under  its  powerful  manipulation.  It  tampers  with 
judges.  It  makes  alliances  with  political  leaders  and  hires  pro- 
fessors of  political  economy  to  defend  its  formation  and  its  ob- 
jects. We  have  seen  it  within  the  past  month  stalk  into  the  Senate 
of  the  United  States  and  prevent  the  passage  of  laws  needed  by  the 
people,  until  it  forced  the  highest  legislative  body  in  the  land  to 
yield  to  its  imperative  demands.  It  is  no  longer  an  interference 
with  trade.  It  is  a  menace  to  political  liberty.  It  is  no  wonder, 
then,  as  President  Cleveland  stated  to  Mr.  Wilson  in  his  now 

606 


Social  and  Economic   Legislation  607 

famous  letter  of  July  2,  on  the  tariff:   "There  is  a  natural  demo- 
cratic animosity  to  the  methods  of  trusts  and  combinations." 

What  a  disgraceful   state  of   affairs  is   revealed  by  the  sugar  Trust  and 

1  1       •        1  If-  •  ,  .   ,     .      .      campaign 

mquiry  report,  recently  submitted  to  the  benate  m  which  it  is  contribu- 
stated:  "It  is  a  matter  of  complete  indifference  to  the  Trust  what  tions. 
duties  are  levied  on  sugar,  so  long  as  the  form  is  ad  valorem,  and 
a  sufficient  differential  is  given  in  favor  of  refined  sugar.  The 
Sugar  Trust,  by  the  evidence  of  its  president  and  treasurer,  has 
contributed  freely  to  the  city  and  state  campaign  finds  of  both 
parties  and  its  contributions  have  been  made  in  years  when  na- 
tional elections  were  held.  This  is  a  thoroughly  corrupt  form  of 
campaign  contributions,  for  such  contributions,  being  given  to 
two  opposing  parties,  are  not  for  the  purpose  of  promoting  certain 
pohtical  principles,  but  to  establish  an  obligation  to  the  giver  on 
the  part  of  whichever  party  comes  into  power.  The  Trust  does  not 
give  to  political  parties  for  the  promotion  of  political  principles 
in  which  it  believes  but  for  the  protection  of  its  own  interests  as 
appears  by  the  same  testimony.  The  fact  that  it  gives  to  both 
political  parties  is  sufficient  proof  of  the  purposes  of  its  contribu- 
tions and  of  their  dangerous  nature.  For  these  reasons,  the  under- 
signed have  felt  it  important  to  lay  before  the  Senate  and  the  coun- 
try the  fact  that  the  sugar  schedule  as  it  now  stands  is,  according 
to  the  testimony,  in  the  form  desired  by  the  Trust,  and  to  point  out, 
also,  the  methods  by  which  the  Sugar  Trust  reached  what  it  de- 
sired and  obtained,  a  substantial  victory." 

Combinations  of  capital,  in  the  form  of  trusts  or  otherwise,  have   Combma- 
been  repeatedly  condemned  by  the  best  legal  minds  and  the  ablest  capital  con- 
thinkers  in  the  country.     It  may  be  well  to  hear  what  some  of  demned  by 
them  have  said.     In  the  opinion  rendered  by  Judge  Gibbons  in   publicists, 
the  case  of  the  Whiskey  Trust,  April,  1894,  he  said:   "Trusts  and 
combines  should  not  exist.     They  and  our  Republican  institu- 
tions cannot  in  their  true  force  and  virtue  co-exist  because  the 
excellence  of  our  institutions  depends  upon  the  opportunity,  influ- 
ence, and  prosperity  of  the  individual  citizens,  and  the  more  wide- 
spread these  opportunities  and  influences,  and  the  more  general 


6o8 


American   Government  and  Politics 


Judge 

Cooky's 

opinion. 


Chief 
Justice 
Sherwood  on 
corporations. 


Corpora- 
tions dan- 
gerous to  a 
free  govern- 
ment and 
individual 
rights. 


this  prosperity,  the  more  perfect   and  stable  is  the  government 
itself." 

A  few  things,"  says  Judge  Cooley,  "can  be  said  of  trusts 
without  danger  of  mistakes.  They  are  things  to  be  feared.  They 
antagonize  a  leading  and  most  invaluable  principle  of  industrial 
life  in  their  attempt  not  to  curb  competition  merely,  but  to  put  an 
end  to  it.  The  course  of  the  leading  trusts  of  the  country  has  been 
such  as  to  emphasize  the  fear  of  them,  and  the  benefits  that  come 
from  its  cheapening  of  an  article  of  commerce  are  insignificant 
when  contrasted  with  the  mischiefs  that  have  followed  the  exhibi- 
tions in  many  forms  of  the  merciless  power  of  concentrated  capital. 
And  when  we  witness  the  utterly  heartless  manner  in  which  trusts 
sometimes  have  closed  many  factories  and  turned  men  willing  to 
be  industrious  into  the  streets  in  order  that  they  may  increase  prof- 
its already  reasonably  large,  we  cannot  help  asking  ourselves  the 
question,  whether  the  trust  as  we  see  it  is  not  a  public  enemy; 
whether  it  is  not  teaching  the  laborer  dangerous  lessons;  whether 
it  is  not  helping  to  breed  anarchy." 

Says  Sherwood,  C.  J.,  in  Richardson  v.  Bull  (77  Mich.  632)  : 
"The  sole  object  of  the  corporation  is  to  make  money  by  having 
it  in  its  power  to  raise  the  price  of  the  article  or  diminish  the  quan- 
tity to  be  made  and  used,  at  its  pleasure.  Thus  both  the  supply 
of  the  article  and  the  price  thereof  are  made  to  depend  upon  the 
action  of  a  half  dozen  individuals,  governed  by  a  single  motive  or 
purpose,  which  is  to  accumulate  money  regardless  of  the  wants  or 
necessities  of  over  60,000,000  of  people.  Monopoly  in  trade  or 
in  any  kind  of  business  in  this  country  is  odious  to  our  form  of 
government. 

"Its  tendency  is  destructive  of  free  institutions  and  repugnant 
to  the  instincts  of  a  free  people  and  contrary  to  the  whole  scope 
and  spirit  of  the  Federal  Constitution,  and  is  not  allowed  to  exist 
under  the  express  provisions  of  several  of  our  State  Constitutions. 

"Indeed,  it  is  doubtful  if  free  government  can  long  exist  in  a 
country  where  such  enormous  amounts  of  money  are  allowed  to 
be  accumulated  in  the  vaults  of  corporations,  to  be  used  at  dis- 


Social  and   Economic   Legislation  609 

cretion  in  controlling  the  property  and  business  of  the  country 
against  the  interest  of  the  pubHc  and  the  policy  of  the  law  for  the 
personal  gain  and  aggrandizement  of  a  few  individuals.  It  is 
always  destructive  of  individual  rights,  and  of  that  free  competi- 
tion which  is  the  hfe  of  the  business,  and  it  revives  and  perpetuates 
one  of  the  great  evils  which  it  was  the  object  of  the  framers  of  our 
form  of  government  to  eradicate  and  prevent.  It  is  alike  de- 
structive to  both  individual  enterprise  and  individual  prosperity 
whether  conferred  upon  corporations  or  individuals,  and,  there- 
fore, pubhc  policy  is,  and  ought  to  be,  as  well  as  public  sentiment, 
against  it.  All  combinations  among  persons  or  among  corpora- 
tions for  the  purpose  of  raising  or  controlling  the  prices  of  mer- 
chandise or  of  any  of  the  necessaries  of  life,  are  monopolies  and 
intolerable,  and  ought  to  receive  condemnation  of  all  courts." 

Chauncey  M.  Depew  in  an  address  before  the  International  Senator 
Brotherhood  of  Engineers  in  Pittsburg,  Pa.,  in  October,  1890,  opinCri^ 
said:  "In  the  United  States  our  pace  is  so  rapid,  and  our  develop- 
ment so  phenomenal,  that  without  due  consideration  we  are  apt 
to  rush  to  extremes.  This  is  true  of  both  capital  and  labor.  The 
money  required  to  construct  telegraphs,  to  build  railroads,  to 
establish  banks,  was  beyond  the  power  of  the  individual  and  so 
the  State  permitted  aggregated  capital  representing  the  contribu- 
tions of  many,  to  perform  these  works.  At  the  same  time,  through 
commissions,  departments  and  State  officers,  the  hand  of  the  Gov- 
ernment was  constantly  upon  them  for  the  protection  of  the  public 
against  extortion  or  discrimination.  But  within  a  few  years  every- 
thing from  pine  lands  to  peanuts,  from  steel  rails  to  sardines,  has 
been  organized  into  some  form  of  corporation  or  trust.  This 
universal  effort  to  absorb  the  individual,  to  divide  the  people  into 
employing  companies  and  employees,  and  to  destroy  competition, 
will  inevitably  end  in  disaster.  .  .  ." 

234.   Control  of  Railways  by  Commission 

The  most  popular  form  of  control  over  public  service  corpora- 
tions is  through  a  commission,  and  these  sections  from  the  Okla- 
2  R 


6io 


American   Government  and   Politics 


homa  constitution  indicate  in  a  general  way  the  power  usually 
conferred  (with  more  or  less  modification)  upon  such  a  body: — • 


Sec.  i8.  The  Commission  shall  have  the  power  and  authority 
and  be  charged  with  the  duty  of  supervising,  regulating,  and  con- 
trolling all  transportation  and  transmission  companies  doing  bus- 
iness in  this  State,  in  all  matters  relating  to  the  performance  of 
their  public  duties  and  their  charges  therefor,  and  of  correcting 
abuses  and  preventing  unjust  discrimination  and  extortion  by  such 
companies;  and  to  that  end  the  Commission  shall,  from  time  to 
time,  prescribe  and  enforce  against  such  companies,  in  the  manner 
hereinafter  authorized,  such  rates,  charges,  classifications  of  traffic, 
and  rules  and  regulations,  and  shall  require  them  to  establish  and 
maintain  all  such  public  service,  facilities,  and  conveniences  as 
may  be  reasonable  and  just,  which  said  rates,  charges,  classifi- 
cations, rules,  regulations,  and  requirements,  the  Commission  may, 
from  time  to  time,  alter  or  amend.  All  rates,  charges,  classifica- 
tions, rules  and  regulations  adopted,  or  acted  upon,  by  any  such 
company,  inconsistent  with  those  prescribed  by  the  commission, 
within  the  scope  of  its  authority,  shall  be  unlawful  and  void. 

The  Commission  shall  also  have  the  right,  at  all  times,  to  inspect 
the  books  and  papers  of  all  transportation  and  transmission  com- 
panies doing  business  in  this  State,  and  to  require  from  such  com- 
panies, from  time  to  time,  special  reports  and  statements,  under 
oath,  concerning  their  business;  it  shall  keep  itself  fully  informed 
of  the  physical  condition  of  all  the  railroads  of  the  State,  as  to  the 
manner  in  which  they  are  operated,  with  reference  to  the  security 
and  accommodation  of  the  public,  and  shall,  from  time  to  time, 
make  and  enforce  such  requirements,  rules,  and  regulations  as  may 
be  necessary  to  prevent  unjust  or  unreasonable  discrimination 
and  extortion  by  any  transportation  or  transmission  company 
in  favor  of,  or  against  any  person,  locality,  community,  connecting 
line,  or  kind  of  traffic,  in  the  matter  of  car  service,  train  or  boat 
schedule,  efficiency  of  transportation,  or  transmission,  or  other- 
wise, in  connection  with  the  public  duties  of  such  company. 


Social  and   Economic   Legislation  6il 

Before  the  Commission  shall  prescribe  or  fix  any  rate,  charge  or  The  right  of 
classification  of  trafl&c,  and  before  it  shall  make  any  order,  rule,  regu-  ^^  ^ 

lation,  or  requirement  directed  against  any  one  or  more  companies  hearing, 
by  name,  the  company  or  companies  to  be  affected  by  such  rate, 
charge,  classification,  order,  rule,  regulation,  or  requirement,  shall 
first  be  given,  by  the  Commission,  at  least  ten  days'  notice  of  the 
time  and  place  when  and  where  the  contemplated  action  in  the 
premises  will  be  considered  and  disposed  of,  and  shall  be  afforded 
a  reasonable  opportunity  to  introduce  evidence  and  to  be  heard 
thereon,  to  the  end  that  justice  may  be  done,  and  shall  have  pro- 
cess to  enforce  the  attendance  of  witnesses;  and  before  said  Com- 
mission shall  make  or  prescribe  any  general  order,  rule,  regulation, 
or  requirement,  not  directed  against  any  specific  company  or  com- 
panies by  name,  the  contemplated  general  order,  rule,  regulation, 
or  requirement  shall  first  be  pubhshed  in  substance,  not  less  than 
once  a  week,  for  four  consecutive  weeks,  in  one  or  more  of  the 
newspapers  of  general  circulation  pubhshed  in  the  county  in  which 
the  Capitol  of  this  State  may  be  located,  together  with  the  notice 
of  the  time  and  place,  when  and  where  the  Commission  will  hear 
any  objections  which  may  be  urged  by  any  person  interested, 
against  the  proposed  order,  rule,  regulation,  or  requirement;  and 
every  such  general  order,  rule,  regulation,  or  requirement,  made 
by  the  Commission,  shall  be  published  at  length,  for  the  time  and 
in  the  manner  above  specified,  before  it  shall  go  into  effect,  and 
shall  also,  so  long  as  it  remains  in  force,  be  pubhshed  in  each  sub- 
sequent annual  report  of  the  Commission. 

Sec.  29.   The  Commission  shall  ascertain,  and  enter  of  record,  The  physi- 
the  same  to  be  a  public  record  as  early  as  practicable,  the  amount  tion  of 
of  money  expended  in  construction  and  equipment  per  mile  of  properties, 
every  railroad  and  other  public  service  corporation  in  Oklahoma, 
the  amount  of  money  expended  to  procure  the  right  of  way,  and 
the  amount  of  money  it  would  require  to  reconstruct  the  roadbed, 
track,  depots,  and  transportation  facilities,  and  to  replace  all  the 
physical  properties  belonging  to  the  railroad  or  other  public  service 
corporation.      It  shall  also  ascertain  the  outstanding  bonds,  de- 


6i2  American  Government  and  Politics 

bentures,  and  indebtedness,  and  the  amount,  respectively,  thereof, 
when  issued,  and  rate  of  interest,  when  due,  for  what  purposes 
issued,  how  used,  to  whom  issued,  to  whom  sold,  and  the  price 
in  cash,  property,  or  labor,  if  any,  received  therefor,  what  became 
of  the  proceeds,  by  whom  the  indebtedness  is  held,  the  amount 
purporting  to  be  due  thereon,  the  floating  indebtedness  of  the 
company,  to  whom  due,  and  his  address,  the  credits  due  on  it,  the 
property  on  hand  belonging  to  the  railroad  company  or  other  pub- 
lic service  corporation,  and  the  judicial  or  other  sales  of  said  road, 
its  property  or  franchises,  and  the  amounts  purporting  to  have 
been  paid,  and  in  what  manner  paid  therefor.  The  Commission 
shall  also  ascertain  the  amounts  paid  for  salaries  to  the  officers 
of  the  railroad,  or  other  public  service  corporation,  and  the  wages 
paid  its  employees.  For  the  purpose  in  this  section  named,  the 
Commission  may  employ  experts  to  assist  them  when  needed,  and 
from  time  to  time,  as  the  information  required  by  this  section  is 
obtained,  it  shall  communicate  the  same  to  the  Attorney  General 
by  report,  and  file  a  duplicate  thereof  with  the  State  Examiner 
and  Inspector  for  public  use,  and  said  information  shall  be  printed, 
from  time  to  time,  in  the  annual  report  of  the  Commission. 

235.    The  Operations  of  a  Railway  Commission 

This  extract  from  a  recent  report  of  the  North  Carolina  Corpora- 
tion Commission  illustrates  the  character  of  the  business  usually 
transacted  in  the  control  of  public  service  corporations :  — 

There  are  within  this  State  3,859.09  miles  of  railroad,  not  in- 
cluding double  and  side-tracks  —  an  increase  over  last  year  of 
59  miles.  Of  our  railroads,  2,839.51  miles  are  operated  by  the 
Southern  Railway  Company,  Atlantic  Coast  Line  Railroad  Com- 
pany, and  Seaboard  Air  Line  Railway,  divided  as  follows :  South- 
ern Railway  Company,  1,279.56  miles;  Atlantic  Coast  Line  Rail- 
road Company,  947.83  miles;  Seaboard  Air  Line  Railway,  612.12 
miles.  Gross  earnings  of  railroads  within  the  State  were  $22,441,- 
705 ;  net  earnings  were  $8,470,483  —  an  increase  in  gross  earnings 


Social  and  Economic   Legislation  613 

of  $2,053,765  and  in  net  earnings  of  $931,472  over  last  year.  In 
the  operation  of  railroads  15,877  persons  were  employed  within  the 
State.  During  the  year  5,089,500  persons  were  transported  within 
the  State. 

In  the  operation  of  trains  35  employees  were  killed  and  492   Accidents, 
injured;   5  passengers  were  killed  and  143  injured;   74  other  per- 
sons were  killed  and  152  injured. 

Three  hundred  and  eighty-seven  complaints  were  made  to  the   Character 
Commission  during  the  year,  the  most  of  which  have  been  dis-   plaints 
posed  of.     Some  in  which  it  was  necessary  to  make  further  in-   against 
vestigation  are  still  pending.     As  the  records  of  our  office  will 
show,  these  complaints  were  of  great  variety.     A  great  many  of 
them  were  for  alleged  failure  of  railroad  companies  to  render  proper 
service.     For  example:   complaints  were  made  for  failure  to  keep 
passenger  schedules;    to  bulletin  the  arrival  of  trains;    to  furnish 
cars  for  shipment  of  freight;    to  transport  freight,  carload  and 
less  than  carload,  within  a  reasonable  time  after  same  was  re- 
ceived;  to  deliver  freight  after  its  arrival  at  destination.     In  many 
cases  these  complaints  were  sustained  by  proof  or  admission  of 
the  carriers. 

It  was  found  that  the  cause  of  failure  to  keep  passenger  schedules  Causes  of 

...  .  .  1  1     •  •  failure 

as  to  through  trams  was,  m  many  mstances,  that  their  connections  ^^  y.^^^ 
had  not  been  kept;  and  as  to  other  trains,  that  they  were  delayed  schedules. 
on  account  of  failure  of  through  trains  to  keep  their  schedules. 
Passenger  service  that  is  rendered  by  local  trains  which  run  upon 
their  own  schedule,  or  such  trains  as  connect  with  but  do  not  wait 
an  unreasonable  time  on  through  trains,  is  more  satisfactory. 
It  may  be  that  upon  this  idea  the  passenger  service  will  be  im- 
proved; if  not,  there  will  be  a  demand  for  more  local  trains  to  be 
run  independent  of  connections.  ... 

Complaints  in  regard   to  freight   service  will  appear  in  detail  ^^^  ^^ 
in  another  part  of  this  report.     We  will  therefore  only  call  atten-  controversy 
tion  to  the  following:    The  furniture  manufacturers  at  High  Point   was  settled, 
complained   that,   although   often   requested   to   furnish   cars  for 
shipment  of  furniture,  the  Southern  Railway  had  failed  to  do  so; 


6 14  American  Government  and   Politics 

that  there  was  at  that  time  a  demand  for  upwards  of  three  hundred 
furniture  cars;  that  goods  had  been  sold,  and  unless  cars  could 
be  had  the  contracts  would  be  broken  and  might  be  cancelled, 
and  that  no  penalty  provided  by  law  or  damages  which  they  could 
recover  from  the  company  would  be  an  adequate  remedy;  that 
their  damage  in  loss  of  trade  could  not  enter  into  damages  which 
they  might  recover,  and  yet  this  would  be  a  great  part  of  the 
threatened  loss.  This  complaint  was  filed  on  the  29th  day  of 
July,  1905,  and  the  Commission  took  the  matter  up  with  the  South- 
em  Railway  Company,  and  held  a  session  at  High  Point  on  the 
first  day  of  August,  1905,  which  session  was  attended  by  the  manu- 
facturers and  shippers  interested  and  by  the  traffic  manager  and 
other  agents  for  the  Southern  Railway  Company.  At  this  session 
complainants  succeeded  in  convincing  the  railroad  officials  of  their 
urgent  need  of  cars,  and  the  railroad  officials  undertook  very 
energetically  to  procure  for  complainants  necessary  cars,  and  what 
promised  to  be  a  serious  car  famine  was  averted.  .  .  . 

The  other  part  of  the  complaint,  as  to  failure  to  transport  freight 
within  a  reasonable  time,  is,  we  regret  to  say,  not  confined  to  any 
part  of  the  State,  but  is  frequent  on  all  railroads  and  at  many  places. 
The  enforcement  of  the  penalty  for  this  negligence,  which  would 
seem  to  be  severe  enough,  has,  we  regret  to  say,  not  yet  had  the 
effect  to  arouse  the  railroads  to  proper  diligence,  nor  does  the 
penalty  compensate  for  the  loss  sustained  in  many  cases.  If  the 
seller  cannot  have  his  goods  delivered  with  any  regularity  or  cer- 
tainty he  will  lose  his  customers,  and  it  is  in  holding  the  trade 
rather  than  the  delivery  of  a  particular  shipment  that  the  shipper  is 
especially  interested.  We  have  taken  up  each  case  called  to  our 
attention  with  the  railroads  and  had  same  investigated,  with  the 
hope  of  placing  the  blame  properly  and  thereby  correcting  the 
evil. 

236.   Control  of  State  Regulation  by  the  Federal  Judiciary 

In  the  control  of  corporations,  the  states  are  restricted  by  the 
provisions   of   the   federal   Constitution,   among   which    the   due 


Social  and   Economic   Legislation  615 

process  clause  of  the  Fourteenth  Amendment  is  one  of  the  most 
effective.  The  way  in  which  a  state  statute  may  be  declared  in- 
valid by  the  Supreme  Court  is  illustrated  by  the  opinion  in  a 
Minnesota  railway  case :  — 

The    Supreme    Court    of    Minnesota    authoritatively    declares  The 
that  it  is  the  expressed  intention  of  the  Legislature  of  Minnesota,   ia4"doesnot 
by  the  statute,  that  the  rates  recommended  and  published  by  the  provide  for 
commission,  if  it  proceeds  in  the  manner  pointed  out  by  the  Act,   ■*"  '"^ 
are  not  simply  advisory,  nor  merely  prima  facie  equal  and  reason- 
able, but  final  and  conclusive  as  to  what  are  equal  and  reasonable 
charges;   that  the  law  neither  contemplates  nor  allows  an  issue  to 
be  made  or  inquiry  to  be  had  as  to  their  equality  or  reasonableness 
in  fact;    that,  under  the  statute,  the  rates  published  by  the  com- 
mission are  the  only  ones  that  are  lawful,  and,  therefore,  in  con- 
templation of  law  the  only  ones  that  are  equal  and  reasonable; 
and  that,  in  a  proceeding  for  a  mandamus  under  the  statute,  there  is 
no  fact  to  traverse  except  the  violation  of  law  in  not  complying 
with  the  recommendations  of  the  commission.     In  other  words, 
although  the  railroad  company  is  forbidden  to  establish  rates  that 
are  not  equal  and  reasonable,  there  is  no  power  in  the  courts  to 
stay  the  hands  of  the  commission,  if  it  chooses  to  establish  rates 
that  are  unequal  and  unreasonable. 

This  being  the  construction  of  the  statute  by  which  we  are  This  is  not 
bound  in  considering  the  present  case,  we  are  of  opinion  that,  oHaw"'^^^^ 
so  construed,  it  conflicts  with  the  Constitution  of  the  United  States 
in  the  particulars  complained  of  by  the  railroad  company.  It 
deprives  the  company  of  its  right  to  a  judicial  investigation  by 
due  process  of  law,  under  the  forms  and  with  the  machinery  pro- 
vided by  the  wisdom  of  successive  ages  for  the  investigation  judi- 
cially of  the  truth  of  a  matter  in  controversy,  and  substitutes  there- 
for, as  an  absolute  finality,  the  action  of  a  railroad  commission 
which,  in  view  of  the  powers  conceded  to  it  by  the  State  court, 
cannot  be  regarded  as  clothed  with  judicial  functions  or  possessing 
the  machinery  of  a  court  of  justice. 

Under  section  8  of  the  statute,  which  the  Supreme  Court  of 


6i6 


American  Government  and  Politics 


Minnesota  says  is  the  only  one  which  relates  to  the  matter  of  the 
fixing  by  the  commission  of  general  schedules  of  rates,  and  which 
section,  it  says,  fully  and  conclusively  provides  for  that  subject, 
and  is  complete  in  itself,  all  that  the  commission  is  required  to  do 
is,  on  the  filing  with  it  by  a  railroad  company  of  copies  of  its  sched- 
ules of  charges,  to  "find"  that  any  part  thereof  is  in  any  respect 
unequal  or  unreasonable,  and  then  it  is  authorized  and  directed 
to  compel  the  company  to  change  the  same  and  adopt  such  charge 
as  the  commission  "shall  declare  to  be  equal  and  reasonable," 
and,  to  that  end,  it  is  required  to  inform  the  company  in  writing 
in  what  respect  its  charges  are  unequal  and  unreasonable.  No 
hearing  is  pr -vided  for,  no  summons  or  notice  to  the  company 
before  the  «jommission  has  found  what  it  is  to  find  and  declared 
what  it  is  to  declare,  no  opportunity  provided  for  the  company  to 
introduce  witnesses  before  the  commission,  in  fact,  nothing  which 
has  the  semblance  of  due  process  of  law;  and  although,  in  the 
present  case,  it  appears  that,  prior  to  the  decision  of  the  com- 
mission, the  company  appeared  before  it  by  its  agent,  and  the 
commission  investigated  the  rates  charged  by  the  company  for 
transporting  milk,  yet  it  does  not  appear  what  the  character  of 
the  investigation  was  or  how  the  result  was  arrived  at. 

By  the  second  section  of  the  statute  in  question,  it  is  provided 
that  all  charges  made  by  a  common  carrier  for  the  transportation 
of  passengers  or  property  shall  be  equal  and  reasonable.  Under 
this  provision,  the  carrier  has  a  right  to  make  equal  and  reasonable 
charges  for  such  transportation.  In  the  present  case,  the  return 
alleged  that  the  rate  of  charge  fixed  by  the  commission  was  not 
equal  or  reasonable,  and  the  Supreme  Court  held  that  the  statute 
deprived  the  company  of  the  right  to  show  that  judicially.  The 
question  of  the  reasonableness  of  a  rate  of  charge  for  transporta- 
tion by  a  railroad  company,  involving  as  it  does  the  element  of 
reasonableness  both  as  regards  the  company  and  as  regards  the 
public,  is  eminently  a  question  for  judicial  investigation,  requiring 
due  process  of  law  for  its  determination.  If  the  company  is  de- 
prived of  the  power  of  charging  reasonable  rates  for  the  use  of  its 


Social   and  Economic  Legislation  617 

property,  and  such  deprivation  takes  place  in  the  absence  of  an 
investigation  by  judicial  machinery,  it  is  deprived  of  the  lawful 
use  of  its  property  and  thus,  in  substance  and  effect,  of  the  prop- 
erty itself,  without  due  process  of  law  and  in  violation  of  the  con- 
stitution of  the  United  States;  and  in  so  far  as  it  is  thus  deprived, 
while  other  persons  are  permitted  to  receive  reasonable  profits 
upon  their  invested  capital,  the  company  is  deprived  of  the  equal 
protection  of  the  laws. 

237.    The  Supreme  Court  and  Labor  Legislation 

In  making  laws  in  behalf  of  the  working  class,  the  state  legis- 
latures are  compelled  to  take  into  account  the  principles  appHed 
by  the  federal  Supreme  Court  in  protecting  privat2  rights.  For 
example,  the  court  recently  held  that  a  section  of  thv.  New  York 
labor  law,  providing  that  no  employees  should  be  required  or  per- 
mitted to  work  in  bakeries  more  than  sixty  hours  a  week  or  ten 
hours  a  day,  was  not  "a  legitimate  exercise  of  the  police  power 
of  the  state,  but  an  unreasonable,  unnecessary,  and  arbitrary  in- 
terference with  the  right  and  liberty  of  the  individual  to  contract, 
in  relation  to  labor."  The  reasoning  of  Mr.  Justice  Peckham 
for,  and  Mr.  Justice  Holmes  against,  this  position  is  thus  summed 
up:  — 

Mr.    Justice   Peckham.     The    statute  necessarily  interferes  Liberty  of 
with  the  right  of  contract  between  the  employer  and  the  employes,   ^°^  [j^^ 
concerning  the  number  of  hours  in  which  the  latter  may  labor  in  police 
the  bakery  of  the  employer.     The  general  right  to  make  a  contract  P"^*^"^- 
in  relation  to  his  business  is  part  of  the  liberty  of  the  individual 
protected  by  the  Fourteenth  Amendment  of  the  Federal  Consti- 
tution.     Allgeyer  v.  Louisiana,  165  U.  S.  578.     Under  that  pro- 
vision no  State  can  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  law.     The  right  to  purchase  or  to  sell  labor 
is  part  of  the  Hberty  protected  by  this  amendment,  unless  there  are 
circumstances   which    exclude    the   right.     There    are,    however, 
certain  powers,  existing  in  the  sovereignty  of  each  State  in  the 
Union,  somewhat  vaguely  termed  police  powers,  the  exact  descrip- 
tion and  limitation  of  which  have  not  been  attempted  by  the  courts. 


^i8 


American  Government  and  Politics 


Those  powers,  broadly  stated  and  without,  at  present,  any  attempt 
at  a  more  specific  limitation,  relate  to  the  safety,  health,  morals 
and  general  welfare  of  the  public.  Both  property  and  liberty  are 
held  on  such  reasonable  conditions  as  may  be  imposed  by  the  gov- 
erning power  of  the  State  in  the  exercise  of  those  powers,  and  with 
such  conditions  as  the  Fourteenth  Amendment  was  not  designed 
to  interfere.  .  .  . 

We  think  the  limit  of  the  police  power  has  been  reached  and 
passed  in  this  case.  There  is,  in  our  judgment,  no  reasonable 
foundation  for  holding  this  to  be  necessary  or  appropriate  as  a 
health  law  to  safeguard  the  pubHc  health  or  the  health  of  the  in- 
dividuals who  are  following  the  trade  of  a  baker.  If  this  statute 
be  valid,  and  if,  therefore,  a  proper  case  is  made  out  in  which  to 
deny  the  right  of  an  individual,  sin  juris,  as  employer  or  employe, 
to  make  contracts  for  the  labor  of  the  latter  under  the  protection 
of  the  provisions  of  the  Federal  Constitution,  there  would  seem 
to  be  no  length  to  which  legislation  of  this  nature  might  not  go. 

We  think  that  there  can  be  no  fair  doubt  that  the  trade  of  a 
baker,  in  and  of  itself,  is  not  an  unhealthy  one  to  that  degree  which 
would  authorize  the  legislature  to  interfere  with  the  right  to  labor, 
and  with  the  right  of  free  contract  on  the  part  of  the  individual, 
either  as  employer  or  employe.  In  looking  through  statistics 
regarding  all  trades  and  occupations,  it  may  be  true  that  the  trade 
of  a  baker  does  not  appear  to  be  as  healthy  as  some  other  trades, 
and  is  also  vastly  more  healthy  than  still  others.  To  the  common 
understanding  the  trade  of  a  baker  has  never  been  regarded  as  an 
unhealthy  one.  Very  likely  physicians  would  not  recommend 
the  exercise  of  that  or  of  any  other  trade  as  a  remedy  for  ill  health. 
Some  occupations  are  more  healthy  than  others,  but  we  think 
there  are  none  which  might  not  come  under  the  power  of  the  leg- 
islature to  supervise  and  control  the  hours  of  working  therein, 
if  the  mere  fact  that  that  occupation  is  not  absolutely  and  perfectly 
healthy  is  to  confer  that  right  upon  the  legislative  department  of 
the  Government.  It  might  be  safely  affirmed  that  almost  all 
occupations  more  or  less  affect  the  health.     There  must  be  more 


Social  and  Economic  Legislation  619 

than  the  mere  fact  of  the  possible  existence  of  some  small  amount 
of  unhealthiness  to  warrant  legislative  interference  with  liberty. 
It  is  unfortunately  true  that  labor,  even  in  any  department,  may 
possibly  carry  with  it  the  seeds  of  unhealthiness.  But  are  we  all, 
on  that  account,  at  the  mercy  of  legislative  majorities  ?  A  printer, 
a  tinsmith,  a  locksmith,  a  carpenter,  a  cabinetmaker,  a  dry  goods 
clerk,  a  bank's,  a  lawyer's  or  a  physician's  clerk,  or  a  clerk  in  almost 
any  kind  of  business,  would  all  come  under  the  power  of  the  legis- 
lature, on  this  assumption.  No  trade,  no  occupation,  no  mode  of 
earning  one's  living,  could  escape  this  all-pervading  power,  and  the 
acts  of  the  legislature  in  limiting  the  hours  of  labor  in  all  employ- 
ments would  be  valid,  although  such  limitation  might  seriously  crip- 
ple the  ability  of  the  laborer  to  support  himself  and  his  family.  .  .  . 

Mr.  Justice  Holmes.  I  regret  sincerely  that  I  am  unable  to  The 
agree  with  the  judgment  in  this  case,  and  that  I  think  it  my  duty  j^e  court 
to  express  my  dissent.  This  case  is  decided  upon  an  economic  based  upon 
theory  which  a  large  part  of  the  country  does  not  entertain.  If  ^heorv'^" 
it  were  a  question  whether  I  agreed  with  that  theory,  I  should 
desire  to  study  it  further  and  long  before  making  up  my  mind. 
But  I  do  not  conceive  that  to  be  my  duty,  because  I  strongly  be- 
lieve that  my  agreement  or  disagreement  had  nothing  to  do  with 
the  right  of  a  majority  to  embody  their  opinions  in  law.  It  is 
settled  by  various  decisions  of  this  court  that  state  constitutions 
and  state  laws  may  regulate  life  in  many  ways  which  we  as  legis- 
lators might  think  as  injudicious  or  if  you  like  as  tyrannical  as 
this,  and  which  equally  with  this  interfere  with  the  liberty  to  con- 
tract. Sunday  laws  and  usury  laws  are  ancient  examples.  A 
more  modern  one  is  the  prohibition  of  lotteries.  The  liberty  of 
the  citizen  to  do  as  he  like's  so  long  as  he  does  not  interfere  with  the 
liberty  of  others  to  do  the  same,  which  has  been  a  shibboleth  for 
some  well-known  writers,  is  interfered  with  by  school-laws,  by 
the  Post  Oflfice,  by  every  state  or  municipal  institution  which 
takes  his  money  for  purposes  thought  desirable,  whether  he  likes 
it  or  not.  The  Fourteenth  Amendment  does  not  enact  Mr. 
Herbert  Spencer's  Social  Statics. 


620 


American  Government  and  Politics 


The  other  day  we  sustained  the  Massachusetts  vaccination  law. 
Jacobson  v.  Massachusetts,  197  U.  S.  11.  United  States  and 
state  statutes  and  decisions  cutting  down  the  liberty  to  contract 
by  way  of  combination  are  familiar  to  this  court.  Northern 
Securities  Co.  v.  United  States,  193  U.  S.  197.  Two  years  ago 
we  upheld  the  prohibition  of  sales  of  stocks  on  margins  or  for 
future  delivery  in  the  constitution  of  California.  Otis  v.  Parker, 
187  U.  S.  606.  The  decision  sustaining  an  eight  hour  law  for 
miners  is  still  recent.  Holden  v.  Hardy,  169  U.  S.  366.  Some  of 
these  laws  embody  convictions  or  prejudices  which  judges  are  likely 
to  share.  Some  may  not.  But  a  constitution  is  not  intended  to 
embody  a  particular  economic  theory,  whether  of  paternalism  and 
the  organic  relation  of  the  citizen  to  the  State  or  of  laissez  faire. 
It  is  made  for  people  of  fundamentally  differing  views,  and  the 
accident  of  our  finding  certain  opinions  natural  and  familiar  or 
novel  and  even  shocking  ought  not  to  conclude  our  judgment  upon 
the  question  whether  statutes  embodying  them  conflict  with  the 
Constitution  of  the  United  States. 

General  propositions  do  not  decide  concrete  cases.  The 
decision  will  depend  on  a  judgment  or  intuition  more  subtle  than 
any  articulate  major  premise.  But  I  think  that  the  proposition 
just  stated,  if  it  is  accepted,  will  carry  us  far  toward  the  end. 
Every  opinion  tends  to  become  a  law.  I  think  that  the  word  Hberty 
in  the  Fourteenth  Amendment  is  perverted  when  it  is  held  to 
prevent  the  natural  outcome  of  a  dominant  opinion,  unless  it  can 
be  said  that  a  rational  and  fair  man  necessarily  would  admit  that 
the  statute  proposed  would  infringe  fundamental  principles  as  they 
have  been  understood  ])y  the  traditions  of  our  people  and  our  law. 
It  does  not  need  research  to  show  that  no  such  sweeping  condem- 
nation can  be  passed  upon  the  statute  before  us.  A  reasonable 
man  might  think  it  a  proper  measure  on  the  score  of  health.  Men 
whom  I  certainly  could  not  pronounce  unreasonable  would  uphold 
it  as  a  first  instalment  of  a  general  regulation  of  the  hours  of  work. 
Whether  in  the  latter  aspect  it  would  be  open  to  the  charge  of 
inequality  I  think  it  unnecessary  to  discuss. 


INDEX 


Note.  —  A  guide  to  all  of  the  important  topics  is  furnished  by  the  Table  of  Contents. 


Accounting,  municipal,  514  ff.,  535  iT. ; 
state  and  local,  565. 

Administration,  national,  197  ff.;  cen- 
tralization    in,    436    ff . ;     municipal, 

517.   521  ff- 

Ambassadors,  expenses  of,  295  ff. 

Amendment,  clause  of  federal  Constitu- 
tion, 56;  the  process  of,  57  ff. ; 
initiation  of,  by  a  state,  60  ff. ;  clause 
of  the  New  York  constitution,  411  ff. 

Amendments  to  federal  Constitution,  I- 
XI,  134  ff.;  XIII,  57  ff.,  392;  XIV, 
393  f.,  394  ff.,  615  ff.,  617  ff.;  XV, 
394- 

Apportionment,  legislative,  75  ff.,  462 
fT.;  congressional,  218  f.,  393. 

Appropriation  bills,  263,  341  f. 

Appropriations,  obtaining  estimates  for, 
338  ff. ;    in  states,  459  f. 

Arbitration,  international,   no;    treaty, 

.305  ff- 

Army,  of  the  United  States,  309  f . ; 
American  theory  of,  320  ff. 

Articles  of  Confederation,  25  ff. ;  criti- 
cism of,  38  ff. 

Assembly  district  leader,  579  f. 

Assessment,  problems  of,  590  ff. 

Assessor,  office  of,  590  ff. 

Attorney-general,  state,  452  f. 

Bank,  federal,  constitutionality  of,  63  ff. 

Bill  of  attainder,   134,  391. 

Bills,    kinds   of,    in    Congress,    262    ff. ; 

preparation    of,     267    ff. ;     in    state 

legislatures,  457  ff.,  468  ff. 
Blockade,  establishment  of,  312  f. 
Boss,  municipal,  125  ff. 

Campaign,  the  national,  conduct  of, 
171  ff. ;   contril)Utions,  572  ff. 

Caucus,  12  note;  legislative,  112  f. ; 
congressional,  114  ff.,  247  ff.;  con- 
demned,   116  If. 


Chairman,  of  the  national  committee, 
169  ff. 

Charter,  municipal,  510  ff. 

Citizenship,  150  ff.,  393  f. 

Citizens'  Union,  486. 

Civil  service  act,  208  ff. 

Commerce,  under  Articles  of  Confedera- 
tion, 40;  constitutional  provisions 
relating  to,  343;  judicial  interpreta- 
tion of  the  term,  344  ff. ;  interstate, 
346,  348  ff.,  352  ff.;  Interstate  Com- 
mission, 356  ff. ;  state  control  of, 
606  ff. 

Commission,  Civil  Service,  208  ff. ;  state 
government  by,  453  ff. ;  Interstate 
Commerce,  356  ff. ;  government  by, 
529  ff. ;    public  service,  609  ff. 

Committee  of  Correspondence,  16  ff. 

Committees,  conference,  272;  legisla- 
tive, 469  ff.,  471  f.,  474;  party, 
586  ff. 

Congress,  Continental,  18  ff. ;  under 
Articles  of  Confederation,  26  ff . ;  the 
federal,  214  ff.,    236  ff.,  247  ff. 

Constituencies,  size  of,  464. 

Constitutionality,  considered  by  the 
Supreme  Court,  63  ff. ;  by  Congress, 
66  ff.  "  . 

Constitution,  the  federal,  convention 
for  drafting,  43  ff. ;  development  of, 
56  ff. ;  amendment  clause,  56;  and 
executive  practice,  69  f . ;  see  Congress, 
President,  Federal  Judiciary,  Amend- 
ments, etc. 

Constitutions,  early  state,  72  ff. 

Construction,  "strict,"  237  ff. ;  "liberal," 
240  ff. 

Continental  Congress,  18  ff. 

Contracts,  oljligation  of,  391. 

Convention,  call  for  Maryland,  36; 
call  for  the  constitutional  convention 
of  1787,  43  f. ;  New  York  appoints 
delegates    to    the    constitutional,    44; 


621 


622 


Index 


difSculties  confronting  the  constitu- 
tional, 44  ff. 

Convention,  party,  119  ff. ;  Benton's 
criticism  of,  120  ff. ;  Lincoln's  defense 
of,  123  ff. ;  call  for  a  national,  160  ff.; 
composition  of,  161  ff. ;  oratory  in  a, 
164  ff.;  "packed,"  585  f.,  588  ff. 

Corporations,  control  of,  88  ff.,  348  ff., 
481,  609  if.;  legislation  against,  484 
ff.;  in  politics,  572  ff. ;  opposition  to, 
606  ff. 

Council,  municipal,  521  ff.,  526  ff.,  529  ff. 

Counties,  465,  561  f. 

Cuba,  resolution  for  intervention  in 
behalf  of,  378;  Piatt  amendment 
relating  to,   379  f. 

Debt,  state,  460  ff. 

Declaration  of  Independence,  21  ff. 

Democratic  party,  95   f.,   102,    103    ff., 

403  ff. 
Department  of  state,  200  f.,  291. 
Departments,  federal,  200  ff. ;  state,  432 

ff.,  517  ff- 
Diplomatic  representatives,  292  ff. 
Due  process  of  law,  614  ff.,  617  ff. 

Elections,  frequency  of,  S3. 

Electors  presidential,  154  ff.,  159  f. 

Electric  lighting  service,  53S  ff. 

E.xecutive  power,  of  royal  governor,  2  ff . ; 
federal,  176  ff.;  state,  432  ff. ;  growth 
of,  442  ff.,  476. 

Exports,  391. 

Ex  post  facto  law,  134,  391. 

E.xtradition,  under  the  Articles  of 
Confederation,  26;  under  the  Consti- 
tution, 14S  f. 

Extraordinary  session,  call  of,  447  f. 

Federalists,  92  ff. 

Federal  law,  supremacy  of,  140  ff. 

Finance,  federal,  323  ff. ;    state,  590  ff. ; 

control  in  state,  565;  municipal,  514 

ff.,  522  ff. 
Foreign  affairs,    under  the  Articles  of 

Confederation,  29;  conduct  of,  291  ff. 
Forests,  national,  363,  364  ff. 
Franchises,  municipal,  531,  548  ff. 
Fraud  orders,  204  f. 

General  property  tax,  592  ff. 
Gerrymander,  158  ff.,  219  f. 


Governor,  the  royal,  2  ff. ;  in  a  corporate 
colony,  7 ;  in  early  state  constitu- 
tions, 73  ff. ;  powers  and  duties  of, 
432  ff. 

Governors'  Conference,  361  ff. 

Grand  jury,  88. 

Habeas  corpus,  87,  134. 

Hamilton,  plea  for  strong  government, 

47  ff. 
Health  department,  municipal,  543  ff. 
Home  rule,  municipal,  509  ff. 
House  of  Representatives,  214  ff.,  253 


Immigration,    100. 

Impeachment,  216. 

Implied  powers,  doctrine  of,  63  ff. 

Imports,  391. 

Inheritance  tax,  federal,  323  ff.,  331; 
state,  603  ff. 

Initiative  and  referendum,  in  Oklahoma, 
413  ff. ;  in  Oregon,  415  ff. ;  argu- 
ments, for  and  against,  419  ff. 

Injunctions,  88. 

Instruction,  of  Representatives  in  Con- 
gress, 233  ff. 

Irrigation,  363,  371  ff. 

Jcffersonians,  92  ff. 

Judiciary,    federal,     273    ff.,     614    ff. ; 

state,    477,    48S    ff.     See    Supreme 

Court,  federal. 
Jury  trial,  87,  377,  490,  495  ff. 
Justices  of  the  peace,  13  f. 

Labor,  legislation,  91,  617  ff. ;  in  city 
government,  554  ff. 

Legislation,  427  ff.;  special,  458;  refer- 
ence bureau,  473;  over-,  475  ff. 

Legislature,  colonial,  3,  7,  8,  10,  16; 
limitations  on  state,  457  ff . ;  proced- 
ure in,  466;  reform  in,  467  ff. ;  and 
railways,  478,  512  ff. 

Liberty,  religious,  10;  under  the  Four- 
teenth Amendment,  394  ff.,  615  ff. 

Lobby,  organization  of,  482  ff. 

Local  government,  10  ff.,  556  ff. 

Log-rolling,  269. 

Machines,  political,  82  f.,   127  ff.     See 

Party. 
Madison,  on  Articles  of  Confederation, 


Index 


623 


38  £F. ;  his  views  on  the  federal  Con- 
stitution, 49  ff. 

Martial  law,  449  ff. 

Mayor,  power  of,  519,  524. 

Militia,  national,  308  f. 

Mineral  lands,  reservation  of,  368  ff. 

Money,  31;    paper,  39,  391. 

Monopolies,  prohibition  of,  89,  358  ff., 
606  ff. 

Municipal  government,  509  ff. ;  owner- 
ship, 539  f-,  548  ff. 

National  committee,  chairman  of,  169  ff. 
Naturalization,  150  ff.,   393. 
Negroes,   excluded    from    the    suffrage, 
401  ff. 

Office-holders,     political     activity     of, 

578  f. 

Pardoning  power,  of  the  royal  governor, 

5  ;   exercise  of,  448. 
Parks,  municipal,  545  ff. 
Partv,  political,  50  ff.,  92  ff.,  160  ff.,  220, 

247  ff.,   567  ff- 
Personal  property  ta.x,  597  ff. 
Philippines,  iii,  377,  380,  385. 
Platforms,  party,  95  ff. 
Piatt  amendment,  379  f. 
Police,  505  ff. 
Police  power,  394  ff. 
Politics.     See  Party. 
Popular     election,     of     United     States 

Senators,  61  ff. 
Porto     Rico,      iii;      government     of, 

388  ff. 
President,  69  ff . ;    provisions  of  federal 

Constitution  relating  to,  154  ff.,  176 

ff . ;    methods  of  nominating,  160  If.; 

as   head   of   national   administration, 

177  ff.;    and   foreign   affairs,    183   f . ; 

war  powers  of,  184  ff.,  313  ff. ;    veto 

power  of,    187   ff.;    message  of  the, 

192  f. ;    influence  of,   on  legislation, 

193  ff. ;  p)ower  of  removal,  197  ff., 
265;  negotiation  of  treaties,  297  ff . ; 
recognition  of  foreign  governments, 
303  ff.;  use  of  troops  by,  317  ff.,  393. 

Primary  legislation,  131  ff.,  58O  ff. 

Private  bills,  263,  469. 

Privileges  and  immunities,  in  the  Articles 
of  Confederation,  26;  in  the  Constitu- 
tion, 146  ff.,  392  f. 


Prohibitions,  on  the  federal  government, 

134  ff.;  on  state  government,  391  ff. 
PubUc  opinion  bill,  418  f. 

Railroads,  108  ff.,  352  ff.,  609  ff. 

Ratification,  of  the  federal  Constitution, 
54  ff. 

Rebates,  354. 

Recall,  the  system  of,  531  f. 

Reclamation,  of  arid  lands,  371  ff. 

Referendum,  see  Initiative  and  referen- 
dum. 

Registration,  of  voters,  401. 

Removal,  President's  power  of,  198  ff. 

Rendition,  interstate,  148  f.,  392. 

Repeating,  in  elections,  584  f. 

Republican  party,  96  ff. 

Resources,  national,  361  ff. 

Revenue  bill,  preparation  of,  263,  ^^^ 
ff. 

Rotation  in  office,  doctrine  of,  81  ff. 

Senate,  the  federal,  215  ff. ;  elections 
to,  221  f.,  225  ff. ;  original  purpose  of, 
222  ff.,  270;  powers  in  the  negotia- 
tion of  treaties,  297  ff. 

Senatorial  courtesy,  212. 

Senators,  election  of,  221  f.,  225  ff. ; 
state,  72. 

Separation  of  jKiwcrs,  117,  138  ff. 

Slavery,  95  ff.,  392  ff. 

Speaker,  duties  of,  256;  political  sig- 
nificance of,  257  ff. ;  sources  of  the 
power  of,  260  ff. 

S[)ccial  legislation,  nature  of,  84  ff. 

Spoils  system,  206  ff.,  211. 

States,  sovereignty  of,  25;  prohibitions 
on,  27  f. ;  conduct  of,  under  Articles 
of  Confederation,  38  ff. ;  pretensions 
of  large  and  small,  46;  constitutional 
development  in,  87  ff . ;  constitutional 
limitations  on,  391  IT.;  government 
of,  391  ff.;  admission  of,  399;  selec- 
tion of  officers  of,  438  ff. 

Suffrage,  36,  72,  78;  under  the  federal 
Constitution,  143  ff.,  393  ff . ;  in  New 
York,  399;  and  the  negro,  401  ff. ; 
woman's,  405  ff. 

Supreme  Court,  the  federal,  140  ff. ; 
constitutional  provisions  relating  to, 
273  ff.;  jurisdiction  of,  273;  powerof, 
over  federal  statutes,  274  ff. ;  over 
state    statutes,    278    ff. ;      Jefferson's 


624 


Index 


criticism  of,  281  ff. ;  political  character 
of  cases  before,  283  ff. ;  place  of  in  the 
American  system,  288  ff.,  614  ff. 

Tammany  Hall,  127,  567  S.,  581  ff. 

Tariff,  protective,  gg,  330,  333  ff.,  337  f. 

Taxation,  federal,  the  uniformity  rule 
in,  323  ff.;  direct,  324,  327;  of  in- 
heritances, 325;  apportionment  of, 
327;  of  incomes,  328  f. ;  social  impli- 
cations of,  331  ff. ;  and  commerce,  348 
ff. ;  state,  480,  590  ff. 

Tenement  house  department,  541. 

Tenure  of  office,  83  f. 

Territories,  constitutional  provisions 
relating  to,  375;  government  of,  375 
ff.,  397  ff. 

"Third  term"  doctrine,  70  f. 

Town  meeting,  Boston,  10  ff.,  556  ff. 

Township,  560  f. 


Treason,  definition  of,  135. 
Treasurer,  county,  563. 
Treaties,  negotiation  of,  297  ff. 
Trusts,    Sherman   act   against,    358   ff. 
See  Corporations. 

Uniformity,    the   rule  of,   in   taxation, 

323  ff- 
Unit  rule,  167  f. 

Veto  power,  4,  217,  444  ff. 
Vice-President,  154  ff.,  216,  393. 
Volunteers,  call  for,  310  f. 

War,  declaration  of,  310;   direction  of, 

313  ff- 
Waterworks,  municipal,  535  ff. 
Ways  and  means  committee,  333  ff. 
Whigs,  94  f. 
Woman's  suffrage,  405  ff. 


INVALUABLE  TO  TEACHERS  AND  STUDENTS  OF  HISTORY 


An  Introduction  to  the  English  Historians 


By  CHARLES  A.  BEARD 


Cloti,  i2mo,  $/.6o  net 


SUMMARY  OF  CONTENTS 


Part 
Part 
Part 
Part 
Part 
Part 
Part 
Part 
Part 


I — The  Foundations  of  England. 

II  —  Feudalism  and  Nationalism   . 

III  —  Medieval  Institutions  . 

IV  — The  Tudor  Age       .... 

V  —  The  Stuart  Constitutional  Conflict 

VI  —  The  Expansion  of  England   . 

VII  —  England  under  the  Georges 

VIII  —  The  Age  of  Reform     . 

IX  —  The  Empire  in  the  Nineteenth  Century 


Page  I 
Page  6 I 
Page  158 
Page  231 
Page  331 
Page  423 
Page  466 
Page  538 
Page  623 


A  brief  course  in  English  history  should  introduce  the  student  to  the  authori- 
ties on  special  topics  and  periods  who  should  be  studied  with  care.  To  solve 
this  problem  in  part,  Dr.  Beard  has  prepared  this  handy  volume  of  extracts 
chosen  from  Stubbs,  Freeman,  Gardiner,  Green,  Hallam,  Lecky,  Macaulay, 
and  other  English  historians  of  note.  To  each  extract  is  added  a  short  bio- 
graphical note  designed  to  introduce  the  student  to  the  materials  on  which  to 
base  a  critical  appreciation  of  the  author's  views. 


"  Dr.  Beard's  '  Introduction  to  the  English  Historians '  —  both  from  the 
pedagogical  and  the  research  points  of  view  —  deserves  unqualified  commen- 
dation. It  is  intelligently  discriminating  in  its  selections,  liberal  and  mature 
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arship and  fruitful  classroom  experience.  It  should  save  both  teachers  and 
sturients  of  English  history  a  vast  amount  of  time  and  labor."  —  77ie  Inde- 
pL'iidenl. 

"The  study  of  English  history  is  indispensable  to  any  intelligent  discussion 
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likely  or  liable  to  be.  In  such  a  study  as  the  times  demand,  an  endless  amount 
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pages  of  readings  from  the  masters  in  English  historical  writings.  This  is  a 
service  to  scholarship  which  will  be  appreciated  by  any  one  who  but  glances 
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SECTIONAL  HISTORIES 

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THE  UNITED   STATES 

Civil  War  and  Reconstruction  in  Alabama 

By  Walter  L.  Fleming,  Ph.D.,  Professor  of  History  in  West  Virginia 
University.  Cloth,  Svo,  $^.oo  net 

"The  most  comprehensive  and  valuable  work  of  the  kind  that  has  yet 
been  written."  —  Dial. 

Reconstruction  in  Mississippi 

By  J.  W.  Garner.  Cloth,  Svo,  $3.00  net 

Robert  Y.  Hayne  and  His  Time 

By  Theodore  D.  Jervey. 

An  interesting  picture  of  social  life  and  conditions  when  South  Carolina 

was  at  the  height  of  her  prosperity  and  influence. 

Cloth,  Svo,  $j.oo  net 
The  History  of  South  Carolina 

From  the  inception  of  the  colony  to  the  end  of  the  Revolution.  By 
Edw^ard  McCrady,  LL.D.,  President  of  the  Historical  Society  of  South 
Carolina.  Four  volumes,  cloth,  Svo,  $j.jo  net  each 

Maryland  as  a  Proprietary  Province 

By  N.  D.  Mereness  Cloth,  Svo,  $j.oo  net 

The  Opening  of  the  Mississippi 

A  struggle  for  supremacy  in  the  American  interior.  By  Frederick 
A.  Ogg,  Fellow  in  History,  Harvard  University.        Cloth,  uino,  $j.oo  net 

"A  general  history  of  the  great  valley  which  is  one  of  the  most  interest- 
ing, scholarly,  and  important  that  has  thus  far  appeared." —  The  World 
To-day. 

North  Carolina 

By  Charles  L.  Raper,  Associate  Professor  of  Economics  and  Associate 
Professor  of  History  in  the  University  of  North  Carolina. 

Cloth,  Svo,  $2.00  net 
From  the  Cotton  Field  to  the  Cotton  Mill 

By  Holland  Thompson,  Sometime  Fellow  in  Columbia  University. 

Cloth,  i2mo,  $1.50  net 

PUBLISHED    BY 

THE   MACMILLAN  COMPANY 

64-66  FIFTH  AVENUE,  NEW  YORK 


AMERICAN  HISTORY 


History  of  the  United  States. 

The  Period  of  Colonial  History 
By  Professor  EDWARD  CHANNING  In  T%o  Volumes 

"  Many  as  are  the  histories  of  the  United  States,  Professor  Channing  has 
ample  justiticatiun  in  adding  another  to  the  list,  not  only  in  his  new  point  of 
view  l)ut  in  his  exhaustive  knowledge.  His  narrative  flows  on  so  smoothly 
that  it  is  only  when  one  realizes  the  immense  mass  of  controversies  which 
he  settles  with  calm  common  sense,  the  thoroughness  of  his  bibliography, 
the  sanity  of  his  criticisms  on  the  hundreds  of  authors  consulted,  that  one 
grasps  the  fulness  of  his  erudition.  .  .  .  Between  the  mother  country 
and  the  colonies  he  holds  the  scales  fair,  doing  justice  to  Great  Britain 
without  falling  into  the  exaggerated  imperialism  of  some  recent  American 
authors."  —  7/ie  English  historical  Review. 

Cloth,  gilt  top,  $j.oo  net 

The  American  Colonies  in  the  Seventeenth  Century 

By  Professor  HERBERT  L.  OSGOOD  In  Three  Volumes 

"The  work  is  the  first  adequate  account  of  the  origin,  character,  and  devel- 
opment of  the  American  colonies  as  institutions  of  government  and  as  parts 
of  a  great  colonial  system ;  and  it  displays  on  the  part  of  the  author  a 
wide  and  deep  knowledge  of  the  documentary  evidence  for  colonial  his- 
tory and  rare  powers  of  analysis  and  interpretation." — American  His- 
torical Revieio. 

Cloth,  Svo,  $g.oo 


History  of  the  United  States 


From  the  Compromise  of  1850  to  the  Final  Restoration  of  Home  Rule 
at  the  South  in  1877 

By  JAMES  FORD  RHODES  In  Seven  Volumes 

"In  rare  and  fortunate  conjunction,  the  distinguishing  characteristics  of 
this  work  are  noteworthy  fairness,  sound  scholarship,  and  a  high  degree  of 
narrative  skill.  ...  It  must  be  deemed  preeminently  the  standard  work 
for  the  period  with  which  it  deals,  and  a  work  so  exhaustive  and  so  able 
that  it  will  probably  be  long  before  its  supremacy  is  challenged." —  The 
Outlook. 

The  set,  in  cloth,  $17.^0 


PUBLISHED    BY 

THE   MACMILLAN  COMPANY 

64-66  FIFTH  AVENUE,  NEW  YORK 


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